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Full text of "North Carolina Register v.13 no. 12 (12/15/1998)"

* DEC 1 7 1998 

NORTH CAROLINA 




PUBLISHED BY 

The Office of Administrative Hearing^r-^^^^^^^^ 

Rules Division 

PO Drawer 27447 

Raleigh, NC 27611-7447 

Telephone (919) 733-2678 

Fax (919) 733-3462 




This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 



[■ i lllM I I H WHIIiWUaMJWgBffJaWCK>M^fMWiMlftrtW.tf«»-i«^wt*>.u*twTr«»m~^.~-— ,.,1 ■ ^ 



liUiBttHaiBaai 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any of its i 
components, consult with the agencies below. The bolded headings are typical issues which the given 
agency can address, but are not inclusive. 

Rule Notices. Filings., Register^l^adnniMrCopiiMof Proposed Rules, etc. 

Office of Administrative Hearings^ 

Rules Division y^''^'^' ."x'^A 

Capenjrt-Crockcr House f V/^- \....,....-:r::::r=l!51i?) 2^3-2678'^ 

424 North Bloimfstreet ^^ 

Raleigh, North Carolina 2760l48r7 



(PipjTTsa-smj'AX 



^:^^K|>S? 



contort j/Molly^|^«Bich,;Diredtdr APA Servi6es 
// / Ruby GreechjiPublications Coordinator 

///^^ // 4 „ 



ffi 



// 



Fiscal Notes & Economic Analysis ' 
// pflfice of State Budget and Managwnent 
' /ll 6 West Jones Street 

Raleigh, North Carolina 27603-8005 



i i I contact: M^arren Plonk 



!Rule Review and Legal Issues 

1 1 \ Rules Review Commission 

\| 1 1307 Glenwood Ave., Suite 159 

W maileigh. North Carolina 27605 

\\\ V ^' V\ ;: 

\lContact: Joe DeLuca Jr., StafFDirector Counsel 




mmasich@oah 
rcreech@oah.state. 



,(919)733-7061^ 
(9i9) 733-0640 FAX 

jvplonk@osbm. state J1C.US 



Bobby Biyan, Staff Attorney , 



Legislative Process ConcerriinglRuIe^maklng s CJ 

Joint Legislative Administrative Procedurepversight Cpmmittee 
545 Legislative Office Buildiiijg 

300 North Salisbmy^trs^f ^ '~*''^%::::::>..^ (919)733-257J 

Raleigh, North Carolina 27611"" "" ' ^ 

contact: Mary ShupiQg,^t^ 



County and Municipality GoveninifeiitOuestions or Notification 

NC Association of County Commissioners 

2 1 5 North Dawson Street (9 1 9) 7 1 5-2893 

Raleigh, North Carolina 27603 

contact: Jim Blackburn or Rebecca Troutman 

NC League of Municipalities 

2 1 5 North Dawson Street (9 1 9) 7 1 5-4000 

Raleigh, North Carolina 27603 

contact: Paula Thomas 





^eS!"™- 



(919)733^?2ia 
(919) 733-9415 FAX 



« 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 



NORTH CAROLINA 
REGISTER 



IN THIS ISSUE 




I. IN ADDITION 

Voting Rights Letters 



941 -942 



II. RULE-MAKING AGENDA 

Environment and Natural Resources 

Environmental Management/Air Quality . . . 943 - 946 

Land Resources/Land Quality 943 - 946 

Water Resources/Planning 943 - 946 



Volume 13, Issue 12 
Pages 941 - 1037 



m. PROPOSED RULES 

Environment and Natural Resources 

Wildlife Resources Commission 948 - 975 

Health and Human Services 

Medical Assistance 947 - 948 



December 15, 1998 



This issue contains documents officially filed 
through November 20, 1998. 



IV. TEMPORARY RULES 

Environment and Natural Resources 

Coastal Resources Commission 976 - 979 

Environmental Health 979 

Health Services 979-988 

Well Contractors Certification Commission . 988 - 994 



V. RULES REVIEW COMMISSION 995 - 1007 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

PO Drawer 27447 

Raleigh, NC 2761 1-7447 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann III, Director 

Camille Winston, Deputy Director 

Molly Masich. Director of APA Services 

Ruby Creech, Publications Coordinator 

Jean Shirley, Editorial Assistant 

Linda Dupree. Editorial Assistant 

Jessica Flowers, Editorial Assistant 



VI. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 1008 - 1014 

Text of Selected Decisions 

98 CPS 0427 1015 - 1017 

98DHR0244 1018-1034 

98DHR0245 1018-1034 

98DHR0247 1018-1034 

98 ELS 0047 1035 - 1037 

VIL CUMULATIVE INDEX 1-68 



Sorth Carolina Register is published semi-monthK for $195 per year b\ the Office of Administrative Hearings. 424 North Blount Street. Raleigh. NC 
27601. (ISSN 15200604) to mail at Periodicals Rates IS paid at Raleigh. NC- P0STN4ASTER; Send Address changes to the \orih Carolina Register. 
PO Drawer 27447. Raleiah. NC 2761 1-7447, 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles and chapters, 
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive 
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be 
numerical in order. The other two. subchapters and sections are optional subdivisions to be used by agencies when 
appropriate. ^___^__ 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 



TITLE 



DEPARTMENT 



LICENSING BOARDS 



CHAPTER 



I 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Athletic Trainer Examiners 


3 


4 


Cominerce 


Auctioneers 


4 


5 


Correction 


Barber Examiners 


6 


6 


Council of State 


Certified Public Accountant Examiners 


8 


7 


Cultural Resources 


Chiropractic Examiners 


10 


8 


Elections 


Employee Assistance Professionals 


11 


9 


Governor 


General Contractors 


12 


10 


Health and Human Services 


Cosmetic Art Examiners 


14 


11 


Insurance 


Dental Examiners 


16 


12 


Justice 


Dietetics/Nutrition 


17 


13 


Labor 


Electrical Contractors 


18 


14A 


Crime Control & Public Safet> 


Electrolysis 


19 


15A 


Environment and Natural Resources 


Foresters 


20 


16 


Public Education 


Geologists 


21 


17 


Revenue 


Hearing Aid Dealers and Fitters 


22 


18 


Secretarv of State 


Landscape Architects 


26 


19A 


Transportation 


Landscape Contractors 


28 


20 


Treasurer 


Marital and Famih Therapy 


31 


*21 


Occupational Licensing Boards 


Medical Examiners 


32 


22 


Administrative Procedures (Repealed) 


Midwifery Joint Committee 


33 


23 


Community Colleges 


Mortuary Science 


34 


24 


Independent Agencies 


Nursing 


36 


25 


State Personnel 


Nursing Home Administrators 


37 


26 


Administrative Hearings 


Occupational Therapists 


38 


27 


NC State Bar 


Opticians 


40 






Optometry 


42 






Osteopathic Examination & Reg. (Repealed) 


44 






Pastoral Counselors. Fee-Based Practicing 


45 






Pharmac\ 


46 






Physical Therapy Examiners 


48 






Plumbing. Heating & Fire Sprinkler Contractors 


50 






Podiatn. Examiners 


52 






Professional Counselors 


53 






PsNchologv Board 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & .'\udiologists 


64 






Substance .Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Veterinarv Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



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INADDITION 



This Section contains public notices that are required to be published in the Register or have been approved by the Codifier 
of Rules for publication. 



U.S. Department of Justice 
Civil Rights Division 



Voting Section 

PO. Box 66128 

Washington, D.C. 20035-6128 



October 27, 1998 



EJ:VLO:TGL:emr 
DJ 166-012-3 
98-1927 
98-1966 



Susan K. Nichols, Esq. 

Special Deputy Attorney 

P.O. Box 629 

Raleigh, North Carolina 27602-0629 



Dear Ms. Nichols: 

This refers to Session Law 1997-265, which provides for a November 3, 1998, special referendum election to allow voters 
to decide if they want the right to petition to change by referendum the method of election for the county commission and school board 
of Beaufort County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 
1973c. We received your response to our July 27, 1998, request for additional information on August 28, 1998. 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly 
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. 
See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). 

Session Law 1997-265, includes provisions that are enabling in nature. Therefore, Beaufort County is not relieved of its 
responsibility to seek Section 5 preclearance of any changes affecting voting proposed to be implemented pursuant to this legislation 
(e.g. . special elections, methods of election). Sec 28 C.F.R. 51.15. 



Sincerely, 



Elizabeth Johnson 
Chief, Voting Section 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



941 



INADDITION 



U.S. Department of Justice 
Civil Rights Division 



EJ:VLO:TGL:par Voting Section 

DJ 1 66-0 1 2-3 PO. Box 66128 

98-3071 Washington. DC. 20035-6128 



October 23. 1998 



Susan K. Nichols, Esq. 

Special Deput>' Attorney General 

P.O. Box 629 

Raleigh, North Carolina 27602-0629 



Dear Ms. Nichols: 



This refers to Session Law 1998-132. which schedules the November 3. 1998. special bond election for the State of North 
Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your 
submission on September 11. 1998. 

The Attorney General does not interpose any objection of the specified change. However, we note that Section 5 expressly 
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change. 
See the Procedures for the Administration of Section 5 (28 C.F.R. 5 1 .4 1 ). 

Sincerely, 

Elizabeth Johnson 
Chief, Voting Section 



942 NORTH CAROLINA REGISTER December 15, 1998 13:12 



R ULE-MAKING A GENOA 



An agency may choose to publish a rule-making agenda which serves as a notice of rule-making proceedings if the agenda 
includes the information required in a notice of rule-making proceedings. The agency must accept comments on the 
agenda for at least 60 days from the publication date. Statutory reference: G.S. 150B-21.2. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES 

This agenda will serve as the notice of mle-making proceedings for the following rule-making bodies from December 15, 1998 

through February 15, 1999: 

Environmental Management Commission to rules codified in 1 5 A NCAC 2; 

Land Resources Commission to rules codified in 1 5 A NCAC 4; 

Commission for Health Services to rules codified in 15A NCAC 18A; 

APA #: E2706 

SUBJECT: Exemptions 

RULE CITATION #: 15A NCAC 2Q .0702 

STATUTORY AUTHORITY: G.S. 143-215.3(a)(I); 143-215.108; I43B-282; S.L. 1989, C. 168, S. 45 

DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT: Thom Allen 

DIVISION CONTACT TEL#: (919)733-1489 

DATE INITIATED: 9/22/98 

DURATION OF RULE: Permanent 4/1/00 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Concept Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

To exempt wood ftimiture manufacturing operations covered imder 40 CFR Part 63, Subpart J J, from the air toxic rules. 

SCOPE/NATURE/SUMMARY : 

The American Furniture Manufacturers Association (AFMA) has asked that the air toxic rules be revised to exempt wood 
furniture operations covered under the maximum achievable control technology (MACT) requirements. (Maximum 
achievable control technology requirements for wood furniture are in 40 CFR Part 63, Subpart JJ, National Emission 
Standards for Wood Furniture manufacturing Operations. This Subpart regulates emissions of hazardous air pollutants from 
solvent usage in wood frimiture manufacturing operations.) The AFMA argues that emissions of toxic air pollutants from 
furniture facilities do not result in any acceptable ambient level being exceeded. It bases its argument on ambient monitoring 
done by the Division of Air Quality in Lenoir. That study did not show any exceedances of the air toxic acceptable ambient 
levels. This study was done before the application of MACT; therefore, after MACT is applied the ambient values should 
be lower 

The Department has agreed to consider this request. However, the AFMA must show by modeling that the emissions from 
the largest furniture facility in the State do not cause any acceptable ambient level for any toxic air pollutant to be exceeded. 
If the modeling results shows that the acceptable ambient levels are not exceeded. Rule 15A NCAC 2Q .0702, Exemptions, 
could be amended to exempt furniture operations subject to 40 CFR Part 63, Subpart JJ. The exemption may be worded such 
that furniture facilities not required to comply with Subpart JJ could choose to be covered under Subpart JJ and thereby 
qualify for the exemption. 

APA #: E2714 

SUBJECT: Activities Exempted form Permit Requirements 

RULE CITATION #: 15A NCAC 2Q .0102 

STATUTORY AUTHORITY: G.S. 143-2 15.3(a)(1); 143-215. 107(a)(4) 143-215.108 

DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT: Thom Allen 

DIVISION CONTACT TEL#: (919)733-1489 

DATE INITIATED: 10/5/98 

DURATION OF RULE: Permanem 7/1/00 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION: 

To add a permit exemption for small wood-fired combustion sources. 
SCOPE/NATURE/SUMMARY: 



13:12 NORTH CAROLINA REGISTER December 15, 1998 943 



R ULE-MAKING A GENOA 



Currently. Rule 1 5 A NCAC 2Q .0 1 02, Activities Exempted from Permit Requirements, does not exempt small wood-fired 
combustion sources, such as space heaters and small boilers. Wood-fired combustion sources are not eligible for the 
miscellaneous exemption. The addition of an exemption for small wood-fired boilers is being considered. The exemption 
could be based on heat input or size of the combustion chamber. Another approach would be to allow these sources to use 
the miscellaneous exemption. This proposal is in keeping with the Department's policy of minimizing permitting of 
insignificant sources. 

APA #: E2715 

SUBJECT: Permissible Open Burning without a Permit 

RULE CITATION #: 1 5 A NCAC 2D . 1 903 

STATUTORY AUTHORITY: G.S. 143-215.3(a)(l ); 143-215. 107(a)(5) 

DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT TEL#: (919)733-1489 

DIVISION CONTACT: Thorn Allen 

DATE INITIATED: 10/5/98 

DURATION OF RULE: Permanent 7/1/00 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

To add that open burning for land clearing or right-of-way maintenance will not create a nuisance. 

SCOPE/NATURE/SUMMARY : 

Rule 15A NCAC 2D .1903, Permissible Open Burning Without a Permit, would be amended to add to the conditions that 
must be met for open burning for land clearing or right-of-way maintenance that the burning does not create a nuisance. This 
requirement already exists for burning leaves and yard trimmings at private residences. Extending this condition to land 
clearing and right-of-way maintenance burning should reduce the number of complaints and problems associated with this 
type of burning. If such burning does cause a nuisance, the Division of Air Quality would have much more leverage to cause 
the problem to be corrected with this language in the rule. Currently, the Division must rely on persuasion and the desire 
of the burner not to cause a nuisance to correct nuisance problems when the burning is other wise performed according to 
the rule. 

APA #:E2716 

SUBJECT: Control of Emissions from Incinerators 

RULE CITATION #: I5A NCAC 2D .1200 

STATUTORY AUTHORITY: G.S. 143-213; I43-215.3(a)(l); 143-215. 107(a)(3),(4),(5) 

DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT: Thorn Allen 

DIVISION CONTACT TEL#: (919)733-1489 

DATE INITIATED: 10/5/98 

DURATION OF RULE: Permanent 7/1/00 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

To amend the incinerator rules to require hazardous waste incinerators to comply with the conditions set under 40 CFR 
270.32(b)(2). 

SCOPE/NATURE/SUMMARY : 

The incinerator rules would be amended to require hazardous waste incinerators to comply with conditions, such as emission 
limitations and operational specifications, determined as necessary to protect human health and the environment under 40 
CFR 270.32(b)(2). These conditions are established from a site specific risk assessment and are determined by the Division 
of Waste Management. (40 CFR 270.32 establishes RCRA permit conditions.) This rule change is being made in 
anticipation of the maximum achievable control technology (MACT) rule for hazardous waste combustors. This MACT 
combines both air pollution control requirements and hazardous waste management requirements. 

APA #:E2717 

SUBJECT: Control of Emissions from Incinerators 

RULE CITATION #: 15A NCAC 2D .1200 

STATUTORY AUTHORITY: G. S. 143-213: 143-215.3(a)(l); 143-215. 107(a)(3),(4).(5) 



944 NORTH CAROLINA REGISTER December 15, 1998 13:12 



R ULE-MAKING A GENOA 



DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT: Thorn Allen 

DIVISION CONTACT TEL#: (919)733-1489 

DATE INITIATED: 10/5/98 

DURATION OF RULE: Permanent 7/1/00 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

To clarify the incinerator rules by reorganizing the incinerator rules by type of incinerator 

SCOPE/NATURE/SUMMARY : 

Section 1 5 A NCAC 2D . 1 200. Control of Emissions from Incinerators, is currently organized by requirements: test methods 
and procedures, reporting and recordkeeping, emission standards, operational standards, excess emissions and start-up and 
shutdown, operator training and certification, and compliance schedules. This organization worked well when the 
requirements were few, similar, and relatively simple for the various kinds of incinerators. However, since these rules were 
adopted, the EPA has promulgated requirements for sewage sludge incinerators, municipal waste combustors, and hospital, 
medical, and infectious waste incinerators. These requirements are often complex and detailed. Incorporating these 
requirements into Section ISA NCAC 2D .1200 has made the incinerator rules overly convoluted. The reorganized rules 
would contain a rule for each type of incinerator. They would include rules for hazardous waste incinerators, sludge 
incinerators, municipal waste combustors, hospital, medical, and infectious waste incinerators, and other types of 
incinerators. 

APA #: E2718 

SUBJECT: Animal Operation Odor Control 

RULE CITATION #: 15A NCAC 2D (New rule or section) 

STATUTORY AUTHORITY: G.S. I43-2I5.3(a)(I); 143-215. 107(a)(Il) 

DIVISION/SECTION: AIR QUALITY 

DATE INITIATED: 10/5/98 

DURATION OF RULE: Permanent 7/1/00 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

DIVISION CONTACT: Thom Allen 

DIVISION CONTACT TEL#: (919)733-1489 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

To control odorous emissions from animal operation. 

SCOPE/NATURE/SUMMARY : 

A new rule or a section of new rules would be adopted to control odors from animal operations. House Bill 515 requires 
the Environmental Management Commission to adopt a temporary rule by March 1, 1999. to regulate the emission of odors 
from animal operations. The temporary rule and permanent rule may be the same or they may differ. 
Several options are being considered. One would specify in detail the type of best management or work practices and the 
use of odor control devices. Under this option work practices would be required; if they failed, odor control devices would 
be required. Another option would specify' a percent reduction in odorous emissions. This option could also be a two-tier 
approach. It could require a certain percentage of reduction initially. If this reduction failed to eliminate odor problems, 
then a higher degree of reduction would be required. A third approach would be to establish an acceptable ambient level 
in terms of odor units. If emissions from an animal operation caused this ambient level to be exceeded, it would have to 
reduce emissions until the ambient level are met. Besides these three options, other options may be considered and adopted. 
These requirements could be applied to all animal operations or only to those with odor problems. Furthermore, new 
operations may have different or additional requirements. The requirements would be based on "Confrol of Odor Emissions 
from Animal Operations" prepared by the Odor Control Report Task Force. Not all the recommendation in this report may 
be used, and requirements not identified in this report may be imposed. 

APA #: E2723 

SUBJECT: Change in procedure for assessing civil penalties under SPCA 

RULE CITATION #: 15A NCAC 4C .0007 

STATUTORY AUTHORITY: 

DIVISION/SECTION: LAND RESOURCES/LAND QUALITY 

DIVISION CONTACT: Bobbie Jo Moore 



]3:12 NORTH CAROLINA REGISTER December 15, 1998 945 



R ULE-MAKING A GENOA 



DIVISION CONTACT TEL#: (919)733-3833 

DATE INITIATED: 10/21/98 

DURATION OF RULE: Permanent 8/1/00 g 

TYPE OF RULE: fj 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

The Sedimentation Control Commission proposes a change to 15A NCAC 4C .0007(a) that will enable a civil penalty 
assessment for the initial violation of beginning a land-disturbing activity prior to obtaining an approved erosion and 
sedimentation control plan. This proposal is part of a Plan of Action adopted by the Commission to aid in strengthening the 
Sedimentation Pollution Control Act of 1973. 

SCOPE/NATURE/SUMMARY : 

CurrentK the Sedimentation Pollution Control Act requires that a Notice of Violation must be issued and a time limit for 
compliance be given for violations of the Act. Historv' indicates that land-disturbing activities are begun without prior plan 
approval and then a plan is onl\ submitted once a Notice is issued. This change will enable civil penalts' assessments for 
the initial violation of beginning a land-disturbing activity without an approved plan. This action is necessary because at 
times sediment damage could be lessened if a plan is approved and implemented on the site. 



( 



( 



946 NORTH CAROLINA REGISTER December 15, 1998 13:12 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a Notice 
of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the publication 
date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment period is 60 
days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory reference: G.S. 
150B-21.2. 



TITLE 10- DEPARTMENT OF 
HEALTH AND HUMAN SERVICES 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the DHHS-Division of Medical Assistance intends to 
amend the rule cited as 10 NCAC 26H . 0401. Notice of Rule- 
making Proceedings was published in the Register on July 15, 
1998. 

Proposed Effective Date: August 1, 2000 

A Public Hearing will be conducted at 1:30 p.m. on December 
30, 1998 at the Kirby Building, Room 132, 1985 Umstead Drive, 
Raleigh, NC. 

Reason for Proposed Action: To reimburse Medicaid 
allowables utilizing updated Resource Based Relative Value 
System (RBRVS). 

Comment Procedures: Written comments concerning this 
rule-making action must be submitted by January 14, 1999 to 
Portia W. Rochelle, Rule-making Coordinator Division of 
Medical Assistance, 1985 Umstead Drive, Raleigh, NC 27603. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local government funds. This Rule does not 
have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 1 2-month period 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26H - REIMBURSEMENT PLANS 

SECTION .0400 - PROVIDER FEE SCHEDULES 

.0401 PHYSICIAN'S FEE SCHEDULE 

(a) Effective January 1. 1995, (see Paragraph (b) of this Rule) 
physicians" services whether furnished in the office, the patient's 
home, a hospital, a nursing facility or elsewhere will be 
reimbursed based on the North Carolina Medicaid Fee Schedule, 
except for payments to the various Medical Faculty Practice 
Plans of the University of North Carolina - Chapel Hill and East 
Carolina University which will be reimbursed at cost and cost 
settled at year end. Effective January _L 1998 . the The North 
Carolina Medicaid Fee Schedule is based on the Medicare Fee 
Schedule Resource Based Relative Value System (RBRVS). in 
effect in fiscal year 1993 1997 (as adopted by Medicare at 56 
F.R. 59501 (November 25, 1991, effective January L 1992, 
applicable to services furnished beginning January F, 1992), but 
with the following clarifications and modifications: 



( 1 ) A maximurr - re is established for each service and is 
applicable to all specialties and settings in which the 
service is rendered. Payment is equal to the lower of 
the maximum fee or the providers customary charge 
to the general public for the particular service 
rendered. 

(2) Fees are established on a statewide basis using the 
Medicare Geographic Practice Cost Indices for North 
Carolina. 

(3) There will be no transition period in applying the 
Medicaid fees whereas Medicare has a five year 
phase-in period. 

(4) Annual changes in the Medicaid payments will be 
applied each January 1 and fee increases will be 
applied based on the forecasted Gross National 
Product (GNP) Implicit Price Deflator. Said annual 
changes in the Medicaid payments shall not exceed 
the percentage increase granted by the North Carolina 
General Assembly. 

(5) Fees for services deemed to be associated with 
adequacy of access to health care services may be 
increased based on administrative review. The service 
must be essential to the health needs of the Medicaid 
recipients, no other comparable treatment available 
and a fee adjustment must be necessary to maintain 
physician participation at a level adequate to meet the 
needs of Medicaid recipients. A fee may also be 
decreased based on administrative review if it is 
determined that the fee may exceed the Medicare 
allowable amount for the same or similar services, or 
if the fee is higher than Medicaid fees for similar 
services, or if the fee is too high in relation to the 
skills, time, and other resources required to provide 
the particular service. 

(6) Fees for new services are established based on this 
Rule, utilizing the most recent RBRVS, if applicable. 
If there is no relative value unit (RVU) available from 
Medicare, fees will be established based on the fees 
for similar services. If there is no RVU or similar 
service, the fee will be set at 75 percent of the 
provider's customary charge to the general public. 

(b) This reimbursement limitation shall become effective in 
accordance with the provisions of G.S. 108A-55(c). These 
changes to the Physician's Fee Schedule allowables will become 
effective when the Health Care Financing Administration, U. S. 
Department of Health and Human Services, approves 
amendment to HCFA by the Director of the Division of Medical 
Assistance on or about January 1, 1998 as #MA 98-07, wherdn 
the Director proposes amendments of the State Plan to amend 
Physician's Fee Schedule. 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



947 



PROPOSED RULES 



Authorir\-G.S. 108A-25(b). 



TITLE ISA - DEPARTMENT OF 
EN.VIRONMENT AND NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 1 50B-21 .2 
that the North Carolina Wildlife Resources Commission 
intends to amend the rule cited as 15A NCAC lOB .0105. Notice 
of Rule-making Proceedings M'as published in the Register on 
October 1. 1998. 

Proposed Effective Date: July 1. 2000 

A Public Hearing will be conducted at 10:00 a.m. on January' 
11. 1999 at the Archdale Building, 3"' Floor Conference Room. 
512 N. Salisbury St. Raleigh. .\C. 

Reason for Proposed Action: To set/amend the rule for 
MIGRATORY GAME BIRDS in order to delineate the area of an 
experimental September teal season. Delineation of the area of 
the September teal season is necessary to properly manage and 
conserve wildlife resources. This proposed rule change is based 
on the Federal FrameM'orks for 1998-99 Early Hunting on 
Certain Migratory Game Birds published by the Department of 
the Interior 

Comment Procedures: Interested persons may present their 
views either orally or in Mriting at the hearing. In addition, the 
record of hearing will be open for receipt of written comments 
from December 15. 1998 to January 14. 1999. Such written 
comments must be delivered or mailed to the NC Wildlife 
Resources Commission. 512 N. Salisbury' Street. Raleigh. North 
Carolina 2-604-1188. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government finds. These Rules do not 
have a substantial economic impact of at least five million 
dollars (S5. 000.000) in a 1 2-month period. 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

SUBCHAPTER lOB - HUNTING AND TRAPPING 

SECTION .0100 -GENERAL REGULATIONS 

.0105 MIGRATORY GAME BIRDS 

(a) Cooperative State Rules 

{ 1 ) The taking of sea ducks (scoter, eider and old squaw) 
during an% special federal K-announced season for 
these species shall be limited to the waters of the 
Atlantic Ocean, and to those coastal waters south of 
US 64 which are separated by a distance of at least 
800 >ards of open water from an\ shore, island or 
marsh. 

(2) The extra daiK bag and possession limits allowed b\ 



the federal regulations on scaup apply in all coastal 
waters east of U.S. Highway 17, except Currituck 
Sound north of US 158. 

(3) Tundra swans may be taken during the open season by 
permit only subject to limitations imposed by the U. S. 
Fish and Wildlife Service. A limited number of 
nontransferable swan permits will be issued by the 
Wildlife Resources Commission to applicants who 
will be selected at random by computer, and only one 
swan may be taken under each permit which must be 
cancelled at the time of the kill by cutting out the 
month and day of the kill. Accompanying the permit 
is a tag which must be affixed to the swan at the time 
and place of the kill. The tag must be affixed in 
accordance with instructions provided with the permit. 
In addition, a preaddressed post-paid card is supplied 
to each permittee on which to report the number of 
da>s hunted and the details of the kill if made. It is 
unlawful to hunt swans without having the permit and 
the tag in possession or to possess a swan without the 
cancelled permit in possession and the tag properly 
affixed to the swan. It is unlawful to possess a swan 
permit or tag while hunting that was assigned to 
another person or to alter the permit or tag in any way 
other than cutting out the proper month and day of 
kill. 

(4) Canada geese maj' be taken during the open season by 
permit holders only subject to limitations imposed by 
the U.S. Fish and Wildlife Service. Permits will be 
issued by the North Carolina Wildlife Resources 
Commission. It is unlawfijl to hunt or possess Canada 
geese without having the permit in possession. It is 
unlawful to possess a Canada goose permit while 
hunting that was assigned to another person or to alter 
the permit in any way. 

(b) Notwithstanding the provisions of G.S. 1 1 3-29 1.1 (a) and 
(b). the following restrictions apply to the taking of migratory 
game birds: 

( 1 ) No migratorv' game bird ma\' be taken: 

(A) With a rifle: 

(B) With a shotgun of anN description capable of 
holding more than three shells, unless it is 
plugged with a one-piece filler, incapable of 
removal without disassembling the gun. so as 
to limit its total capacity to not more than three 
shells. 

(2) No migratorv game bird ma\ be taken: 

(A) From or by the use of a sinkbox or any other 
type of low floating device affording the hunter 
a means of concealment beneath the surface of 
the water; 

(B) With the aid of bait, or on. over or within 300 
yards of an\ place where an\ grain, salt or 
other feed is exposed so as to constitute an 
attraction to migratorv game birds or has been 
so exposed during an>' of the 10 consecutive 
days preceding the taking, except that this Part 
shall not appK to standing crops, flooded 



948 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



caaMoaiBB aam 



PROPOSED RULES 



croplands, grain crops properly shocked on the 
field where grown, or grains found scattered 
solely as the result of normal agricultural 
planting or harvesting; 
(C) With the aid of live decoys, or on, over or 
within 300 yards of any place where tame or 
captive migratory game birds are present, 
unless such birds are and have been for a 
period of 10 consecutive days prior to such 
taking confined within an enclosure which 
substantially reduces the audibility of their 
calls and totally conceals them from the sight 
of wild migratory game birds. 

(3) Waterfowl hunting and harassment and other 
unauthorized activities shall be prohibited on posted 
waterfowl management areas established by the 
Wildlife Resources Commission for Canada Geese 
and ducks restoration. 

(4) In that area of Roanoke Sound adjacent to and 
immediately Northeast of Roanoke Island as marked 
by buoys designating the waterfowl rest area, it shall 
be unlawful to harass or take any waterfowl. 

(5) The area east of US \1_ shall be designated as an 
experimental September teal season zone as 
referenced by the Federal frameworks calling for state 
rules designating experimental areas. 



manage and preserve the resource. 

ISA NCAC IOC .0107, .0205-.0206, .0305, .0401 - To 

set/amend inland fishing regulations necessary^ to manage and 
preserve the resource. 

ISA NCAC lOD .0102:0103 - To set/amend game land 
regulations necessary' to manage and preserve the resource. 

Comment Procedures: Interested persons may present their 
views either orally or in writing at the hearing. In addition, the 
record of hearing will be open for receipt of written comments 
from December 15, 1998 to February 11. 1999. Such written 
comments must be delivered or mailed to the NC Wildlife 
Resources Commission, 512 N. Salisbury Street, Raleigh, North 
Carolina 27604-1188. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do not 
have a substantial economic impact of at least five million 
dollars (S5.000.000) in a 12-month period. 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

SUBCHAPTER lOB - HUNTING AND TRAPPING 

SECTION .0100 - GENERAL REGULATIONS 



.4uthorit^■ G.S 113-134: 113-274: 
C.F.R. 20.21: 50C.F.R. 20.105. 



113-291.1: 113-291.2: 50 



******************** 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina Wildlife Resources Commission 
intends to amend the rules cited as 15A NCAC lOB .0113, 
.0202-.0203. .0205, .0209, .0212, .0302: 15A NCAC IOC .010\ 
.0205-.0206. .0305. .0401: 15A NCAC lOD .0102-.0103. Notice 
of Rule-making Proceedings was published in the Register on 
October 15. 1998. 

Proposed Effective Date: July 1. 2000 

A Public Hearing will be conducted at 7:00 pm on January 19, 
1999 at the Southwestern Community College in Sylva, NC: on 
January 20. 1999 at the Morganton Municipal Auditorium in 
Morganton. NC: on January 21, 1999 at the Starmount High 
School in Boonville, NC: on January 25, 1999 at the Courthouse 
in Elizabethtown, NC: on January 26. 1999 at the Courthouse 
in Graham. NC: on January 27, 1999 at the Central Dcnidson 
Middle School in Lexington, NC: on February 1, 1999 at the 
Swain Auditorium in Edenton. NC: on February 2. 1999 at the 
Courthouse in New Bern, NC: on Februaiy 3, 1999 at the 
Courthouse in Nashville, NC. 

Reason for Proposed Action: 

ISA NCAC 10B.0II3, .0202-.0203, .020S, .0209, .0212, .0302 - 

To set/amend hunting and trapping regulations necessary to 



.0113 BIG GAME KILL REPORTS 

Th e carcass of each b e ar, wild turk e y, and d ee r ( e xc e pt 
antl e rl e ss deor har\'e s t c d on ar e as in th e D ee r Manag e m e nt 
A s sistanc e Program as d es crib e d in G.S. 113 291.2( e )) shall b e 
tagg e d at th e s it e of th e kill with th e appropriat e big gam e tag 
which has b ee n validat e d by cutting out th e month and day of th e 

IV 1 i I . 

All harv e sted b e ar, d ee r, wild turk e y, and wild boar must b e 
r e gist e r e d at a Wildlif e Coop e rator Ag e nt or r e port e d through 
th e toll free Big Game Tel e phon e R e porting System, b e for e th e y 
ar e skinn e d or dr e ss e d or dismemb e red for consumption e xc e pt 
in tho se ca se s wh e r e th e kill occurs in a r e mot e ar e a which 
pr e v e nts th e animal from b e ing transported a s an entir e carcass. 
In th ese cas e s, th e carca ss may b e tagged, skinned, quart e r e d, 
and transport e d to th e Wildlif e Cooperator Agent for r e porting 
or r e port e d within 2 4 hours through the Big Game T e l e phon e 
R e porting Syst e m. A Wildlif e Coop e rator Ag e nt locat e d within 
th e immediat e ar e a of op e n s e ason shall supply an authorization 
number or an authorization numb e r may b e obtain e d through th e 
Big Game Telephone R e porting Sy s t e m. — Th e tag shall b e 
affixed to the carcass at a location and in s uch mann e r as to be 
vi s ibl e upon insp e ction from th e outside, and it is unlavvftil to 
affix th e tag at any location or in any manner so as to conc e al it 
from visibility upon ordinary in s pection. — It is unlawful to 
remove th e tag from th e carca s s prior to th e kill being prop e rly 
r e ported e ith e r through a Wildlif e Coop e rator Agent or through 
th e Big Gam e T e l e phon e Reporting Syst e m or at any tim e 



th e r e aft e r until th e carcas 



finally skinn e d or dr e ss e d for 



consumption. Th e authorization numb e r giv e n through th e Big 
Gam e T e l e phon e R e porting Syst e m or a Wildlife Cooperator 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



949 



PROPOSED RULES 



Agent must b e r e cord e d on th e appropriat e lin e of th e hunt e r's 
Big Game Hao i ' e st Authorization R e cord provid e d with th e ir 
lic e ns e and shall th e r e aft e r constitut e his p e rmit to continu e in 
poss e ssion of th e carcass. Oth e rwis e , th e continued poss e ssion 
of th e b e ar, wild turk e y, d ee r or wild boar shall b e unlawful. 

Persons who are by law e xempt from th e big game hunting 
lic e n se arc not required to tag th e carcass but shall report each 



kill a s abov e r e quired, and. in li e u of th e tag and Big Gam e hunting license number, and 



authorization for continued possession of the carcass. Possession 
of a harvested bear, deer, wild boar, or wild turkey without a 
validated Big Game Harvest Report Card including the 
authorization number obtained from a Wildlife Cooperator 
Agent shall be unlawful. 

(d) Persons killing a big game animal 
unattended must identify the carcass 

the 



and 



with 

date of 



leaving it 
their name, their 
kill or with the 



Harv e st Authorization R e cord, the hunt e r shall r e cord th e 
authorization numb e r and retain it to th e r e aft e r constitut e his 
p e rmit to continu e in po sse ssion of the carcass. — TTi e word 
" e x e mpt" tog e th e r with th e r e a s on th e r e for (par e nt's lic e ns e - 
landown e r, agricultural l e ss ee ) s hall b e v i Titt e n on the hunter's 
record and th e r e gistration form at th e Wildlif e Coop e rator 
Ag e nt. 

P e r s on s killing a doer under the Doer Manag e ment Assistanc e 
Program and not r e quir e d to us e th e tag provided with th e Big 
Gam e Lic e nse must not r e cord th e ir authorization number on th e 
Big Game Authorization R e cord but must k ee p a se parat e r e cord 
of th e authorization number s obtained for d ee r kill e d und e r this 
program. 

Any big gam e tag which has b ee n d e tach e d from th e backing or 
tag card issu e d with th e big gom e lic e n se prior to th e killing and 
tagging of th e big game animal may b e s e iz e d b\ a wildlif e 
e nforc e m e nt offic e r, if th e r e i s e vid e nc e of prior u se . 

(a) Upon killing a bear, deer, wild boar, or wild turkey and 
before moving the animal from the site of kill, the successful 
hunter must validate the Big Game Harvest Report Card 
furnished with the big game hunting license by cutting or 
punching out the validation box that correctK identifies the big 
game animal harvested. 

(b) Before an\ harvested bear, deer, wild boar, or wild turke\ 
is skinned, dressed, or dismembered for consumption and within 
24 hours of the kill, the animal must be transported to a Wildlife 
Cooperator Agent within the immediate area of open season to 
be registered. The hunter ma\ field dress the animal at the site 
of kill or before registering it at a Wildlife Cooperator Agent by 
bleeding and removing the digestive, respiratory, and circulatory 
organs: but, the hunter may not mutilate the carcass in a manner 
that obscures its species identity, age, or sex. When the kill 
occurs in a remote area, which prevents the animal from being 
transported as an entire carcass, the animal may be skinned and 
quartered before being transported to a Wildlife Cooperator 
Agent to be registered. When a hunter harvests a bjg game 
animal [n a remote area and plans to remain in the remote area 
for longer than a day, the 24-hour time limit to register the kill 
is extended until the hunter leaves the area. Upon leaving the 
remote area, the hunter shall proceed directly to a Wildlife 
Cooperator Agent to register the kill. 

(c) When a successful hunter presents a big game kill at a 
Wildlife Cooperator Agent for registration, the Wildlife 
Cooperator Agent shall issue an authorization number, which 
includes the date of kill, to the successful big game hunter The 
hunter shall record the authorization number given by the 
Wildlife Cooperator Agent in the space provided immediately 
beloys' the validation box that has been cut or punched out on the 
Big Game Harvest Report Card. The record entered on the Big 
Game Harvest Report Card shall thereafter constitute 



authorization number received at the Wildlife Cooperator Agent. 
if the animal has already been registered. It shall be unlawful for 
a person to possess a Big Game Harvest Report Card on which 
the species validation box has been cut or punched out, but on 
which the authorization number from a Wildlife Cooperator 
Agent has not been recorded, unless the animal is in the person's 
possession and being transported to a Wildlife Cooperator 
Agent. 

(e) Persons who are bv law exempt from the big game hunting 
license shall obtain a Big Game Harvest Report Card for License 
Exempt Hunters from a Wildlife Service Agent at no cost. Upon 
harvesting a bear, deer, wild boar, or wild turkey, the exempt 
person shall validate the Big Game Harvest Record Card and 
report the big game kill at a Wildlife Cooperator Agent as 
provided by this Rule. 

(f) Persons killing antlerless deer under the Deer Management 
Assistance Program pursuant to G.S. 1 13-291. 2(e) shall follow 
the tagging and reporting requirements set forth by statute and 
are not obligated to take any action under this Rule. 

Authority- G.S. 113-134: 113-270.3; 113-276.1. 

SECTION .0200 - HUNTING 

.0202 BEAR 

(a) Open Seasons for bear shall be from the: 

(1) Monday on or nearest October 15 to the Saturday 
before Thanksgiving and the third Monday after 
Thanksgiving to January 1 in and west of the 
boundary formed by NC +6 113 from the Virginia 
State line to Wilk e sboro and the intersection with NC 
1 8 and NC J_8 from Wilk e sboro to the South Carolina 
State line. 

(2) Second Monday in November to the following 
Saturday and the third Monday after Thanksgiving to 
the following Wednesday in all of B e aufort. Bertie. 
Camd e n. Crav e n. Dar e . Gat e s. H e rtford. Hyde. Jon e s. 
Pamlico. Pasquotank. Tyrr e ll, and Washington and 
Hertford counties; and in the following parts of 
counties: 

Chowan: that part north of a lino form e d by 

SR 1002. SR 1222 and SR 1221. 

Currituck: e xc e pt Knotts Island and th e 

Out e r Banks. 

Halifax: that part east of US 301. 

Martin: that part east of US 1 7. 

Northampton: that part east of US 301 . 

(3) Second Monday in November to January 1 in all of 
Bladen. Carteret. Duplin. New Hanover, Onslow and 
Pender counties; and in the following parts of 



950 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



ixMaKH\mii mmvmrf^ wmYm!\mmm \ lliii III |i|lll iB ii|i || illl l lll W 



PROPOSED RULES 



counties: 

Cumberland: thatpart south of NC 24 and east 

of the Cape Fear River. 

Sampson: that part south of NC 24. 

(4) Second Monday in December to January 1 in 
Brunswick and Columbus counties. 

(5) Second Monday jn November to the following 
Saturday and the third Monday after Thanksgiving to 
the fifth Saturday after Thanksgiving in aU of 
Beaufort, Camden. Craven, Dare, Gates, Hyde. Jones. 
Pamlico. Pasquotank, Tyrrell, and Washington 
counties, and in the following parts of counties: 
Chowan: that part north of a line formed by 
SR 1002. SR 1222. and SR 1220. 

Currituck: except Knotts Island and the 

Outer Banks. 

(b) No Open Season. There is no open season in any area not 
included in Paragraph (a) of this Rule or in those parts of 
counties included in the following posted bear sanctuaries: 

Avery, Burke and Caldwell counties— Daniel Boone 

bear sanctuary 

Beaufort, Bertie and Washington counties-Bachelor 

Bay bear sanctuary 

Beaufort and Pamlico counties— Gum Swamp bear 

sanctuary 

Bladen County— Suggs Mill Pond bear sanctuary 

Brunswick County— Green Swamp bear sanctuary 

Buncombe, Haywood. Henderson and Transylvania 

counties— Pisgah bear sanctuary 

Carteret, Craven and Jones counties-Croatan bear 

sanctuary 

Clay County-Fires Creek bear sanctuary 

Columbus County-Columbus County bear sanctuary 

Currituck County— North River bear sanctuary 

Dare County— Bombing Range bear sanctuary 

Haywood County— Harmon Den bear sanctuary 

Haywood County— Sherwood bear sanctuary 

Hyde County-Gull Rock bear sanctuary 

Hyde County— Pungo River bear sanctuary 

Jackson County— Panthertown-Bonas Defeat bear 

sanctuary 

Jones and Onslow counties— Hofrnann bear sanctuary 

Macon County-Standing Indian bear sanctuary 

Macon County— Wayah bear sanctuary 

Madison County— Rich Mountain bear sanctuary 

McDowell and Yancey counties— Mt. Mitchell bear 

sanctuary 

Mitchell and Yancey counties— Flat Top bear 

sanctuary 

Wilkes County— Thurmond Chatham bear sanctuary 

(c) Bag limits shall be: 

(1) daily, one; 

(2) possession, one; 

(3) season, one. 

(d) Kill Reports. The carcass of each bear shall be tagged and 
the kill reported as provided by 15A NCAC 1 OB .0113. 

AuthoritvG.S. 113-134; 113-291.2: 113-291.7: 113-305. 



.0203 DEER (WHITE-TAILED) 

(a) Closed Season. All counties and parts of counties not 
listed under the open seasons in Paragraph (b) in this Rule shall 
be closed to deer hunting. 

(b) Open Seasons (All Lawful Weapons) 

(1) Deer With Visible Antlers. Deer with antlers or 
spikes protruding through the skin, as distinguished 
from knobs or buttons covered by skin or velvet, may 
be taken during the following seasons: 

(A) Monday on or nearest October 15 through 
January 1 in all of Beaufort, Bertie, Bladen, 
Brunswick, Camden, Carteret, Chowan, 
Columbus*, Craven, Currituck, Dare, Duplin, 
Edgecombe. Franklin, Gates, Greene, Halifax, 
Hertford, Hoke, Hyde, Johnston, Jones, Lenoir, 
Martin, Nash, New Hanover, Northampton, 
Onslow, Pamlico, Pasquotank, Pender, 
Perquimans, Pitt, Richmond**, Robeson, 
Sampson, Scotland**, Tyrrell, Vance, Wake, 
Warren, Washington, Wayne, and Wilson 
counties, and the following parts of counties: 
Cumberland: All of the county except that part 
east of US 401, north of NC 24, and west of I- 
95; 

Harnett: That part west of NC 87; 
Moore**: All of the county except that part 
north of NC 211 and west of US 1; 
*Unlawful to hunt or kill deer in Lake 
Waccamaw or within 50 yards of its shoreline. 
**See 15A NCAC lOD .0003(f)(52)(B) 
.0103(f)(53)(B) for seasons on Sandhills Game 
Land. 

(B) Monday of Thanksgiving week through the 
third Saturday after Thanksgiving Day in all of 
Alexander, Alleghany, Ashe, Catawba, Davie, 
Forsyth. Gaston, Iredell, Lincoln, Stokes, 
Surry, Watauga, Wilkes, and Yadkin counties. 

(C) Monday of Thanksgiving week through the 
third Saturday after Thanksgiving Day in all of 
Avery, Buncombe, Burke, Caldwell, Cherokee, 
Clay, Cleveland, Graham, Haywood, 
Henderson, Jackson, Macon, Madison, 
McDowell, Mitchell, Polk, Ruth e rford, Swain, 
Transylvania, and Yancey counties. 

(D) Monday before Thanksgiving week through 
January 1 in all of Alamance, Anson, Cabarrus, 
Caswell, Chatham, Cleveland. Davidson, 
Durham, Gaston. Granville. Guilford, Lee, 
Lincoln, Mecklenburg, Montgomery, Orange, 
Person, Randolph, Rockingham, Rowan, 
Rutherford, Stanly, and Union counties, and in 
the following parts of counties: 
Cumberland: That part east of US 401, north 
ofNC 24 and west of 1-95; 

Harnett: That part east of NC 87; 

Moore: That part north of NC 2 1 1 and west of 

US 1; 

(E) Monday on or nearest September 1 through 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



951 



PROPOSED RULES 



January 1 in those parts of Camden, Gates and Pasquotank 
counties known as the Dismal Swamp National Wildlife Refijge, 
in those parts of Hyde, Tyrrell and Washington counties known 
as the Pocosin Lakes National Wildlife Refuge, in those parts of 
Anson and Richmond counties known as the Pee Dee National 
Wildlife Refijge, and in that part of Currituck County known as 
the Mackay Island National Wildlife Refuge. 

(2) Deer of Either Sex. Except on Game Lands, deer of 
either sex may be taken during the open seasons and 
in the counties and portions of counties listed in this 
Subparagraph (S ee lOD .0003 Section (See lOD 
.0103 for either sex seasons on Game Lands): 

(A) The open either-sex deer hunting dates 
established by the U.S. Fish and Wildlife 
Service during the period from the Monda\ on 
or nearest September 10 through January 1 in 
those parts of Camden, Gates and Pasquotank 
counties known as the Dismal Swamp National 
Wildlife Refuge, in those parts of H\de, T\Trell 
and Washington counties known as the Pocosin 
Lakes National Wildif e Wildlife Refuge, in 
those parts of Anson and Richmond counties 
known as the Pee Dee National Wildlife 
Refuge, and in that part of Currituck Count\ 
known as the Mackay Island National Wildlife 
Refuge. 

(B) The open either-sex deer hunting dates 
established by the appropriate militar\ 
commands during the period fi^om Monday on 
or nearest October 1 5 through January 1 in that 
part of Brunswick Comity known as the Sunny 
Point Military Ocean Terminal, in that part of 
Craven County known and marked as Cherry 
Point Marine Base, in that part of Onslow 
County known and marked as the Camp 
Lejeune Marine Base, on Fort Bragg Military 
Reservation, and on Camp Mackall Militar)' 
Reservation. 

(C) First Saturda\ in October for youth either sex 
deer hunting by permit onK on a portion of 
Belews Creek Steam Station in Stokes Countv 
designated b\ agents of the Commission. 

(D) The last open da>' of the Deer with Visible 
Antlers season described in Subparagraph 
(b)(1) of this Rule in all of Buncombe, 
Hayuood, Henderson. Madison, Mitchell, 
Polk, Transylvania, and Yancey counties and 
the following parts of counties: 

Avery: That part south of the Blue Ridge 

Parkwa\. 

Robeson: That part west of 1-95. 

Scotland: That part south of US 74. 

(E) The last six open da>s of the Deer With Visible 
Antlers season described in Subparagraph 
(b)(1) of this Rule in all of Burke, Caldwell, 
Catawba. Gaston, Lincoln, McDowell, and 
Watauga and the following parts of counties: 
Camden: That part south of US 158. 



Dare: Except the Outer Banks north of 
Whalebone. 

(F) The first six open days and the last six open 
days of the Deer with Visible Antlers season 
described in Subparagraph (b)(1) of this Rule 
in all of Carteret, Cleveland, Harnett, Hoke, 
Pamlico, Richmond, Rutherford, counties and 
in the following parts of counties: 
Columbus: That part west of US 74. SR 1005, 
andSR 1125. 

Cumberland: That part west of 1-95. 
Moore: All of the county except that part north 
ofNC211 and west of US 1. 
Robeson: That part east of 1-95. 
Scotland: That part north of US 74. 

(G) The first six open days, open days the week of 
Thanksgiving, and and the last six open days of 
the Deer with Visible Antlers season described 
in Subparagraph (b)(1) of this Rule in all of 
Greene, Pasquotank, Tyrrell, Wayne and 
Wilson counties and in the following parts of 
counties: 

Camden: That part north of US 158. 
Chowan: That part north of US 17 and west of 
NC32. 

Currituck: All of the county except the Outer 
Banks. 

Nash: That part south of US-64t NC 97. 
Johnston: That part north of US 70 or west of 
1-95. 
(H) All the open days of the Deer With Visible 
Antlers season described in Subparagraph 
(b)(1) of this Rule in all of Alamance, 
Alexander, Alleghany, Anson, Ashe, Beaufort, 
Bertie, Bladen, Brunswick, Cabarrus, Caswell, 
Chatham. Craven. Davidson, Davie, Duplin, 
Durham. Edgecombe, Fors>th, Franklin, Gates, 
Granville, Guilford, Halifax, Hertford, Hyde, 
Iredell. Jones, Lee, Lenoir, Martin, 
Mecklenburg, Montgomery, New Hanover, 
Northampton, Onslow, Orange, Pender, 
Perquimans, Person, Pitt, Randolph, 
Rockingham, Rowan. Sampson, Stanly, Stokes, 
Surry, Union. Vance, Wake, Warren, 
Washington. Wilkes and Yadkin counties, and 
in the following parts of counties: 
Buncombe: that part east of NC 191, south of 
the French Broad and Swannanoa Rivers, west 
of US 25, and north of SR 3503, NC 146 and 
SR3501. 

Chowan: That part south of US 17 or east of 
NC32. 

Columbus: That part east of a line formed by 
US74, SR 1005, and SR 1125. 
Cumberland: that part east of 1-95. 
Dare: That part of the Outer Banks north of 
Whalebone. 
Johnston: That part south of US 70 and east of 



952 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



PROPOSED RULES 



1-95. 



Moore: that part north of NC 2 1 1 and west of 

US 1. 

Nash: That part north of ¥S-64t NC 97. 

(c) Open Seasons (Bow and Arrow) 

(1) Authorization. Subject to the restrictions set out in 
Subparagraph (2) of this Paragraph and the bag Hmits 
set out in Paragraph (e) of this Rule, deer of either sex 
may be taken with bow and arrow during the 
following seasons: 

(A) Monday on or nearest September 10 to the 
fourth Saturday thereafter in the counties and 
parts of counties having the open season for 
Deer With Visible Antlers specified by Part 
(A) of Subparagraph (b)(1) of this Rule, except 
on the Sandhills Game Land and the area 
known as the Outer Banks in Currituck 
County. 

(B) Monday on or nearest September 10 to the 
second Saturday before Thanksgiving in the 
counties and parts of counties having the open 
seasons for Deer With Visible Antlers 
specified by Part (B) of Subparagraph (b)( 1 ) of 
this Rule. 

(C) Monday on or nearest September 10 to the 
fourth Saturday thereafter, and Monday on or 
nearest October 15 to the Saturda> before 
Thanksgiving in the counties and parts of 
counties having the open seasons for Deer 
With Visible Antlers specified by Part (C) of 
Subparagraph (b)(1) of this Rule. 

(D) Monday on or nearest September 10 to the 
third Saturday before Thanksgiving in the 
counties and parts of counties having the open 
season for Deer With Visible Antlers specified 
by Part (D) of Subparagraph (b)( 1 ) of this 
Rule, and on Sandhills Game Land. 

(2) Restrictions 

(A) Dogs may not be used for hunting deer during 
the bow and arrow season. 

(B) It is unlawful to carry any type of firearm while 
hunting with a bow during the bow and arrow 
deer hunting season. 

(C) Only bows and arrows of the types authorized 
in 15 A NCAC 1 OB .01 16 for taking deer may 
be used during the bow and arrow deer hunting 
season. 

(d) Open Seasons (Muzzle-Loading Rifles and Shotguns) 
(1) Authorization. Subject to the restrictions set out in 

Subparagraph (2) of this Paragraph, deer may be taken 
only with muzzle-loading firearms (except that bow 
and arrow may be used on designated and posted 
game land Archery Zones) during the following 
seasons: 

(A) Monday on or nearest October 8 to the 
following Saturday in the counties and parts of 
counties having the open seasons for Deer 
With Visible Antlers specified by Parts (A) and 



(C) of Subparagraph (b)(1) of this Rule, except 
on Sandhills Game Land and the area known as 
the Outer Banks in Currituck County. 

(B) Monday to Saturday of the week preceding 
Thanksgiving week in the counties and parts of 
counties having the open seasons for Deer 
With Visible Antlers specified by Part (B) of 
Subparagraph (b)( 1 ) of this Rule. 

(C) Monday to Saturday of the second week before 
Thanksgiving week in the counties and parts of 
counties having the open season for Deer With 
Visible Antlers specified by Part (D) of 
Subparagraph (b)(1) of this Rule, and on 
Sandhills Game Land. 

(2) Restrictions 

(A) Deer of either sex may be taken during muzzle- 
loading firearms season in and east of the 
following counties: Rutherford, McDowell, 
Burke, Caldwell, Wilkes, and Ashe. Deer of 
either sex may be taken on the last day of 
muzzle-loading firearms season in all other 
counties. 

(B) Dogs shall not be used for hunting deer during 
the muzzle-loading firearms seasons. 

(C) Pistols shall not be carried while hunting deer 
during the muzzle-loading firearms seasons. 

(e) The daily bag limit shall be two and the possession limit 
six, two of which shall be antlerless. The season limit shall be 
six, two of which shall be antlerless. Antlerless deer include 
males with knobs or buttons covered by skin or velvet as 
distinguished from spikes protruding through the skin. The 
antlerless bag limits described above do not apply to antlerless 
deer harvested in areas covered in the Deer Management 
Assistance Program as described in G.S. 113-291. 2(e). 
Individual daily antlerless bag limits on these areas shall be 
determined by the number of special tags, issued by the Division 
of Wildlife Management as authorized by the Executive 
Director, that shall be in the possession of the hunter. Season 
antlerless bag limits shall be set by the number of tags available. 
All antlerless deer harvested on these areas, regardless of the 
date of harvest, shall be tagged with these special tags but do not 
hav e to b e tagg e d with Big Gam e Tags the hunter does not have 
to validate the Big Game Harvest Report Card provided with the 
hunting license. 

(0 Kill Reports. The kill shall be validated at the site of kill 
Th e carcass of e ach deer shall b e tagg e d and the kill reported as 
provided by 15A NCAC 10B.0113. 

Authority G.S. 113-134; 113-270.3; 113-276.1; 113-291.1; 
113-291.2. 

.0205 RACCOON AND OPOSSUM 

(a) Open S e asons Season: fl-)Sunrise Monday on or nearest 
October 1 5 to January 3 1 in and west of Stokes, Forsyth, Davi e , 
Ir e d e ll. M e ckl e nburg and Union Counti e s: the jast day of 
February, except as follows: 

-(A4(l) There is no open season for hunting raccoon or 
opossum in that part of Madison County lying north 



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December 15, 1998 



953 



PROPOSED RULES 



of the French Broad River, south of US 25-70 and west of SR 
1319. 

-fB)£2j Raccoon and opossum may be hunted only from 
sunset Friday until sunrise Saturday and from sunset 
Saturday until 12:00 midnight Saturday in that part of 
Cherokee County north of US 64 and NC 294. east of 
Persimmon Creek and Hivvassee Lake, south of 
Hiwassee Lake, and west of Nottely River 
-f€^3) Training raccoon and opossum dogs is prohibited 
from March 1 to the Monday on or nearest October 1 5 
in the following parts of counties: 
mA) Cherokee: That part north of US 64 and NC 
294, east of Persimmon Creek and Hiwassee 
Lake, south of Hiwassee Lake, and west of 
Nottely Riven 
fi^KB) Madison: That part north of the French Broad 
River, south of US 25-70. and west of SR 
1319. 
(©X4j Training raccoon and opossum dogs at night is 
prohibited from April 1 through August 15 in 
Caldwell and Rutherford Counties. 
(3) Sunri se Monday on or n e ar e st Octob e r 22 to th e la s t 
day of F e bruary, in and e ast of Rockingham. Guilford. 
Davidson. Rowan. Cabarrus. Stanly and Anson 
Counti es . 
(b) Bag Limits 

( 1 ) Raccoon: Daily, one per individual to a maximum of 
two per hunting party ; possession, two; season. 20, 
except that in and east of Rockingham. Guilford, 
Randolph. Montgomery and Anson counties the limits 
are: daily, three; possession, six; season. 30. The field 
possession limit while hunting is the same as the 
applicable daily limit. 

(2) Opossum: No restriction. 

Note: See 1 5 A NC AC 1 OB .0 1 1 1 prohibiting axes, saws and 
shooting in certain western counties. 

Authority- G.S. 113-134: 113-291.2. 

.0209 WILD TURKEY (BEARDED TURKEYS ONLY) 

(a) Open Season for wild turkey shall be from the: Second 
Saturday in April to Saturda> of the fourth week thereafter on 
bearded turkeys in the following counties: Alamance. Alexander, 
Alleghany. Anson. Ashe. Aver>. **Bladen. Buncombe. Burke, 
Caldwell. Caswell. Catawba, **Chatham, Cherokee. Chowan. 
Clay, Cleveland. Craven, Davie. Duplin. **Durham, 
Edgecombe. Fors\th. Gaston. Gates. Graham. **Granville. 
Halifax. Harnett, Haywood, Henderson, Hertford, Jackson, 
Jones, Lee, Lenoir, Lincoln, Macon, Madison, McDowell, 
Mitchell. MontgomerN. Northampton. Onslow. **Orange. 
Person. Polk. **Richmond. Rockingham. Rutherford. 
**Scotland. Stokes. Surr>. Swain. Transylvania. Vance. 
Washington. Warren. Watauga. Wilkes. Yadkin. Yance\ and in 
the following portions of counties: 

An s on: That part e ast of US 52 and north of US 7 4 

and that part e ast of NC 115 and south of US 7 4 . 

Beaufort: That part south of the Pamlico River and 

east of US 17. 



**Bertie: All of the county except that part 

bounded on the west by NC 1 1. on the south by NC 

308. on the east by NC 45. and on the north by NC 42 

and the Hertford Count>' line, south of NC 12. west of 

NC 1 5. north of NC 30 8 . and o ast of US 13 . 

Brunswick: That part west of NC 211 and that part 

east of NC 87. 

Cabarrus: That part south of 1-85, east of US 601 

Business, and north of NC 49. 

Camden: That part west of US 17. 

Carteret: That part west of US 70 and north of NC 24. 

Chowan: That part south of US 17. 

Columbus: That part north of NC 87 and that part 

east of NC 905 and south of NC 130. 

Crav e n: All of th e county e xc e pt that part w e st of US 

17 and north of NC 11 8 ." 

Cumberland: That part west of NC 53 or 1-95. 

Currituck: That part north of US 158 and west of the 

Intracoastal Waterwa\. 

Davidson: That part south of 1-85. 

Franklin: All of the county except that part north of 

the Tar River and west of US 40 1 . 

Guilford: That part north of 1-40. 

Hoke: That part south and west of NC 211 and that 

part known as Fort Bragg. 

Hyde: Starting at the Tyrrell County line, that 

part west of a line formed by NC 94, US 264 West, 

SRI 124 to Judges Quarter then Quarter Canal to 

Juniper Ba>. 

Iredell: That part north of US 70. 

Johnston: That part east of 1-95. 

**Martin: All of the county except that part west of 

US 17 and south of US 64. 

**Moore: That part south of NC 344 2iL that part 

north of NC 24^27. and that part known as Fort Bragg. 

Nash: All of the county except that part east of NC 

581 and south of US 64'. 

New Hanover: Starting at the Brunsw ick County line, 

that part north and west of a line formed by NC-133 

and SR 1002. 

Pamlico: That part west of NC 306. 

**Pender: All of the county except that part west of 

1-40, north of NC 53, and east of US 421. 

Perquimans: That part w e st of th e P e rquiman s Riv e r 

and south of SR 1 1 10 and US 1 7 Busin es s. AHofthe 

county except that part south of US 17 and east of the 

Perquimans River. 

Randolph: That part west of US 220 and north of US 

64 and that part west of US 220 and south of NC 49. 

Robeson: That part east of 1-95 and north of US 

74. 

Rowan: That part southeast of 1-85. 

Sampson: All of the county except that part east of 

NC 242. south of NC 41 1. and west of US 701. 

Stanly: That part east of a line formed b\' US 52 

from the Cabarrus Counry line to NC 138 in 

Albemarle. NC 138 from Albemarle to NC 742 in 

Oakboro. and NC 742 from Oakboro to the Union 



954 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



PROPOSED RULES 



County line. 

Union: That part south of US 74. NC 7 4 and w e st of 
NC 207. 

**Wake: That part north of 1-40. 
Wayne: That part south of US-70 and east of US- 1 1 7 
and that part south of SR 1007 and north of SR 1008. 
**The Sandhills Game Land in Richmond, Scotland, 
and Moore Counties, the Bladen Lakes State Forest 
Game Lands in Bladen County, the Northeast Cape 
Fear Wetlands Game Lands in Pender County, the 
Jordan Game Land in Chatham, Durham, Orange, and 
Wake Counties, the Butner-Falls of the Neuse Game 
Land in Durham, Granville, and Wake Counties, and 
the Roanoke River Wetlands in Bertie, Halifax, and 
Martin Counties are closed to turkey hunting except 
by holders of special permits authorizing turkey 
hunting as provided in G.S. 1 I3-264(d). 

(b) Bag Limits shall be: 

( 1 ) daily, one; 

(2) possession, two; 

(3) season, two. 

(c) Dogs Prohibited. It is unlawful to use dogs for hunting 
turkeys. 

(d) Kill Reports. The carcass of each wild turkey shall be 
tagged and the kill reported as provided by 15A NCAC lOB 
.0113. 

Authority G.S. 113-134; 113-270.3: 113-276.1; 113-291.2. 

.0212 FOXES (GRAY AND RED) 

(a) Seasons. 

( 1 ) There shall be no closed season on taking foxes with 
dogs; 

(2) Foxes may be taken with weapons or traps the first to 
fourth Saturday in January in the following counties: 



Brunswick 


Henderson 


Stokes 


Caswell 


Johnston 


Tyrrell 


Clay 


Macon 




Graham 


Sampson 





Highway 77 as set by the Legislature and in 
Subparagraph (a)(3) of this Rule, the following bag 
limit applies: Daily, two; season, 10. 
Note: Where local laws governing the taking of foxes conflict 
with these Regulations, the local laws shall prevail. 

Authority G.S. 113-134; 113-291.2; 113-291.4. 

SECTION .0300 - TRAPPING 

.0302 OPEN SEASONS 

(a) General. Subject to the restrictions set out in Paragraph 
(b) of this Rule, the following seasons for taking furbearing 
animals as defined in G.S. 113-129(7a), coyotes, and 
groundhogs shall apply as indicated, all dates being inclusive: 

(1) November 7-February 12 in and west of Surry, 
Wilkes, Alexander, Catawba, Burke and Cleveland 
Counties. 

(2) December 1 5-February 28 in and east of Hertford, 
Bertie, Martin, Pitt, Greene, Lenoir, Duplin, Pender 
and New Hanover Counties, except that in the 
marshes adjoining Currituck Sound in Currituck 
County the season is December 15-March 12 and 
nutria may not be shot at any time (day or night) 
during the open season for migratory waterfowl. 

(3) December 1 -February 20 in all other counties. 

(4) November 1 - March 3 1 statewide for beaver only. 

(b) Restrictions 

(1) It is unlawful to trap or take otter in and west of 
Stokes, Forsyth, Davie, Iredell, and Mecklenburg 
Counties. 

(2) It is unlawful to set steel traps for muskrat or mink in 
and west of Surry, Wilkes, Alexander, Catawba, 
Burke and Cleveland Counties except in or adjacent 
to the waters of lakes, streams or ponds. 

(3) It is unlawful to trap raccoon in Yadkin County and in 
and west of Surry, Wilkes, Alexander, Catawba, 
Lincoln and Gaston Counties. 

Note: See 15A NCAC lOD .0002(f) .0102(f) for other 



trapping restrictions on game lands. 



(3) Foxes may be taken the Saturday next preceding 
Thanksgiving through January 1 by bow and arrow in 
all areas of the State east of Interstate Highway 77 and 
in Mitchell County, 
(b) Bag Limit. 

( 1 ) Except in areas of open season for taking foxes with 
weapons or traps, foxes may not be intentionally 
killed by any method; 

(2) In areas of open season set by the North Carolina 
Wildlife Resources Commission in Subparagraph 
(a)(2) of this Rule for taking foxes with weapons or 
traps the season harvest in each county is limited to 
the number of tags allotted for that county. Each fox 
must be immediately tagged at the scene of taking 
with tag previously obtained as provided by 15A 
NCAC 1 OB .0403(d); 

(3) In areas of open season in all areas east of Interstate 



Authority G.S. 113-134; 113-291.1; 113-291.2. 

SUBCHAPTER IOC - INLAND FISHING 
REGULATIONS 

SECTION .0100 - JURISDICTION OF AGENCIES: 
CLASSIFICATION OF WATERS 

.0107 SPECIAL REGULATIONS: JOINT WATERS 

In order to effectively manage all fisheries resources in joint 
waters and in order to confer enforcement powers on both 
fisheries enforcement ofTicers and wildlife enforcement officers 
with respect to certain rules; the Marine Fisheries Commission 
and the Wildlife Resources Commission deem it necessary to 
adopt special rules for joint waters. Such rules supersede any 
inconsistent rules of the Marine Fisheries Commission or the 
Wildlife Resources Commission that would otherwise be 



13:12 



NORTH CAROLINA REGISTER 

Bffl 



December 15, 1998 



955 



PROPOSED RULES 



applicable in joint waters under the provisions of 15A NCAC 
IOC .0106: 

( 1 ) Striped Bass 

(a) It shall be unlawful to possess an\ striped bass 
or striped bass h>brid taken bN' any means 
\shich is less than 18 inches long (total length). 

(b) It shall be unlawfijj to possess more than three 
striped bass or their hybrids taken by hook and 
line in an> one da\ from joint waters. 

(c) It shall be unlawful to engage in net fishing for 
striped bass or their hNbrids in joint waters 
except as authorized b\ duK adopted 
regulations of the Marine Fisheries 
Commission. 

(d) It is unlaw ful to possess striped bass or striped 
bass h\brids in the joint waters of Albemarle. 
Currituck. Roanoke and Croatan Sounds and 
their tributaries, excluding the Roanoke Ri\er. 
except during seasons as authorized b\ duh' 
adopted rules of the Marine Fisheries 
Commission. 

(e) In the joint waters of the Roanoke River and its 
tributaries, including Cashie. Middle and 
Eastmost Ri\ers. striped bass and h\brid 
striped bass fishing season, size limits and 
creel limits shall be the same as those 
established b> authorized h\ duK adopted rules 
of the Wildlife Resources Commission for 
adjacent inland fishing waters. 

(2) Lake Mattamuskeet 

(a) It shall be unlawful to set or attempt to set an\ 
gill net in Lake Mattamuskeet canals 
designated as joint waters. 

(b) It shall be unlaw ful to use or attempt to use an> 
trawl net or seines in Lake Mattamuskeet 
canals designated as joint waters. 

(3) Cape Fear River. It shall be unlawful to use or 
attempt to use an\ net or net stakes \\ ithin 800 feet of 
the dam at Lock No. 1 on Cape Fear Ri\ er 

(4) American and hickor\ shad, ft shall be unlawful to 
possess more than 10 American and hickor\ shad in 
aggregate taken b\ hook and line in an\ one day from 
joint waters. 

Authority G.S. U 3-1 32: 113-134: 113-138: 113-292. 

.0205 PUBLIC MOUNTAIN TROUT VNATERS 

(a) Designation of Public Mountain Trout Waters. The 
waters listed herein or in 15A NCAC lOD ^0004 .0104 are 
designated as Public Mountain Trout Waters and further 
classified as Wild Trout Waters or Hatcher. Supported Waters. 
For specific classifications, see Subparagraphs ( 1 ) through (6) 
of this Paragraph. TTiese waters are posted and lists thereof are 
filed with the clerks of superior court of the counties in which 
they are located: 

(1) Hatcher. Supported Trout Waters. The listed waters 
in the counties in Subparagraphs (1)(A)-(Y) are 
classified as Hatcher. Supported Public Mountain 



Trout Waters. WTiere specific watercourses or 
impoundments are listed, indentation indicates that the 
watercourse or impoundment listed is tributarv' to the 
next preceding watercourse or impoundment listed 
and not so indented. This classification applies to the 
entire watercourse or impoundment listed except as 
otherwise indicated in parentheses following the 
listing. Other clarifying information ma\ also be 
included parentheticalK. The tributaries of listed 
\\ atercourses or impoundments are not included in the 
classification unless specifically set out therein. 
Other\sise. Wild Trout regulations apph' to the 
tributaries. 

(A) Alleghany County: 

New Ri\er (not trout water) 

Little River (Whitehead to McCann 
Dam) 

Crab Creek 

Brush Creek (except where 

posted against trespass) 

Big Pine Creek 

Laurel Branch 

Big Glade Creek 

Bledsoe Creek 

Pine Swamp Creek 

South Fork New River (not trout 

v\ater) 

Prather Creek 

Cranbern Creek 

Pine\ Fork 

Meadow Fork 
Yadkin River (not trout water) 

Roaring River (not trout water) 
East Prong Roaring River (that portion 
on Stone Mountain State Park) Delaved 
Harvest Waters regulations appK. See 
Subparagraph (5) of Paragraph (a) of 
this Rule. 

(B) AsheCount>: 

New River (not trout waters) 

North Fork New Ri\er (Watauga Co. line to 

Sharp Dam) 

Helton Creek (Virginia State line to 
New River) [Dela\ed Harvest rules 
apply. See Subparagraph (5) of 
Paragraph (a) of this Rule.] 
Big Horse Creek (SR 1361 bridge to 
Tuckerdale) 

Buffalo Creek (headwaters to junction 
ofNC 194-88 and SR 1131) 
Big Laurel Creek 

Three Top Creek (portion not on game 
lands) 

Hoskins Fork (Watauga Countv line to 
North Fork New River) 
South Fork New River (not trout waters) 
Cranbern. Creek (Alleghan\ Countv line 
to South Fork New Riv er) 



956 



NORTH CAROLINA REGISTER 



December 15. 1998 



13:12 



PROPOSED RULES 



Nathans Creek 

Peak Creek (headwaters to Trout Lake, 

except Blue Ridge Parkway waters) 

Trout Lake (Delayed harvest regulations 

apply. See Subparagraph (5) of 

Paragraph (a) of this Rule.) 

Roan Creek 

North Beaver Creek 

Pine Swamp Creek (all forks) 

Old Fields Creek 

Mill Creek (except where posted against 

trespass) 

(C) Avery County: 

Nolichucky River (not trout waters) 

North Toe River (headwaters to 
Mitchell County line, except where 
posted against trespass) 

Squirrel Creek 
Elk River (SR 1306 crossing to 
Tennessee State line, including portions 
of tributaries on game lands) 
Catawba River (not trout water) 
Johns River (not trout water) 
Wilson Creek [not Hatchery Supported 
trout water, see Subparagraph (2) of 
Paragraph (a) of this Rule] 

Lost Cove Creek [not Hatchery 
Supported trout water, see 
Subparagraph (4) of Paragraph 
(a) of this Rule] 
Buck Timber Creek [not Hatchery 
Supported trout water, see Subparagraph 
(2) of Paragraph (a) of this Rule] 
Cary Flat Branch [not Hatchery 
Supported trout water, see Subparagraph 
(2) of Paragraph (a) of this Rule] 
Boyde Coffey Lake 
Archie Coffey Lake 
Linville River [Land Harbor line (below 
dam) to Blue Ridge Parkway boundary 
line, except where posted against 
trespass] 

Milltimber Creek 

(D) Buncombe County: 

French Broad River (not trout water) 

Big Ivy Creek (Ivy River) (Dillingham 
Creek to US 19-23 bridge) 

Dillingham Creek (Comer Rock 
Creek to Big Ivy Creek) 
Stony Creek 

Mineral Creek (including 
portions of tributaries on game 
lands) 

Comer Rock Creek (including 
tributaries, except Walker 
Branch) 
Reems Creek (Sugar Camp Fork to US 19-23 
bridge, except where posted against trespass) 



Swannanoa River (SR 2702 bridge near 

Ridgecrest to Sayles Bleachery in 

Asheville, except where posted against 

trespass) 

Bent Creek (headwaters to N.C. 

Arboretum boundary line, including 

portions of tributaries on game lands) 

Lake Powhatan 
Cane Creek (headwaters to SR 3138 
bridge) 

(E) Burke County: 

Catawba River (not trout water) 

South Fork Catawba River (not trout 
water) 

Henry Fork (lower South 
Mountains State Park line 
downstream to SR 1919 at Ivy 
Creek) 

Jacob Fork (Shinny Creek to 
lower South Mountain State 
Park boundary) Delayed 
Harvest Regulations apply. 
See Subparagraph (a)(5) of 
this Rule. 
Johns River (not trout water) 

Parks Creek (portion not on 
game lands not trout water) 

Carroll Creek (game lands 
portion above SR 1405 including 
tributaries) 
Linville River (game lands portion 
below the Blue Ridge Parkway 
including portions of tributaries on 
game lands and from first bridge on SR 
1223 below Lake James powerhouse to 
Muddy Creek) 

(F) Caldwell County: 

Catawba River (not trout water) 

Johns River (not trout water) 

Wilson Creek (Phillips Branch to 
Browns Mountain Beach dam, 
except where posted against 
trespass) 

Estes Mill Creek (not trout water) 
Thorps Creek (falls to NC 90 
bridge) 
Mulberry Creek (portion not on game 
lands not trout water) 

Boone Fork (not Hatchery 
Supported trout water. See 
Subparagraph (2) of Paragraph 
(a) of this Rule) 
Boone Fork Pond 

(G) Cherokee County: 

Hiwassee River (not trout water) 

Shuler Creek (headwaters to Tennessee 
line, except where posted against 
trespass including portions of tributaries 



13:12 



NORTH CAROLINA REGISTER 
UBBfl 



December 15, 1998 



957 



PROPOSED RULES 



on game lands) 

North Shoal Creek (Crane Creek) 

(headwaters to SR 1325, including 

portions of tributaries on game lands) 

Persimmon Creek 

Davis Creek (including portions of 

tributaries on game lands) 

Bald Creek (including portions 
of tributaries on game lands) 

Beaver Dam Creek (headwaters to SR 

1326 bridge, including portions of 

tributaries on game lands) 

Valle\ River 

Hyatt Creek (including portions 
of tributaries on game lands) 
Webb Creek (including portions 
of tributaries on game lands) 
Junaluska Creek (Ashtum Creek 
to Valle> River, including 
portions of tributaries on game 
lands) 
(H) Clay County: 

Hiwassee River (not trout water) 

Fires Creek (first bridge above the lower 

game land line on US Forest Service 

road 442 to SR 1300) 

Tusquitee Creek (headwaters to lower 

SR 1300 bridge, including portions of 

Bluff Branch on game lands) 

Tuni Creek (including portions 
of tributaries on game lands) 

Chatuge Lake (not trout water) 

Shooting Creek (SR 1349 bridge to US 

64 bridge at SR 1338) 

Hothouse Branch (including 
portions of tributaries on 
gamelands) 

Vineyard Creek (including 
portions of tributaries on game 
lands) 
(I) Graham County : 

Little Tennessee River (not trout water) 
Calderwood Reservoir (Cheoah Dam to 
Tennessee State line) 
Cheoah River (not trout water) 

Yellow Creek 

Santeelah Reservoir (not trout water) 
West Buffalo Creek 

Huffman Creek (Little 
Buffalo Creek) 
Santeelah Creek (Johns Branch 
to mouth including portions of 
tributaries within this section 
located on game lands, excluding 
Johns Branch) 

Big Snowbird Creek (old railroad 

junction to mouth, including portions of 

tributaries on game lands) 



Mountain Creek (game lands boundary 
toSR 1138 bridge) 

Long Creek (portion not on game 
lands) 

Tulula Creek (headwaters to 
lower bridge on SR 1275) 
Franks Creek 
Cheoah Reservoir 
Fontana Reservoir (not trout water) 
Stecoah Creek 
Sawyer Creek 

Panther Creek (including 
portions of tributaries on game 
lands) 
(J) Haywood County: 

Pigeon River (not trout water) 

Hurricane Creek (including portions of 
tributaries on game lands) 
Cold Springs Creek (including portions 
of tributaries on game lands) 
Jonathans Creek - lower (concrete 
bridge in Dellwood to Pigeon River) 
Jonathans Creek - upper [SR 1302 
bridge (west) to SR 1307 bridge] 
Hemphill Creek 

West Fork Pigeon River (triple 
arch bridge on highway NC 215 
to Champion International 
property line, including portions 
of tributaries within this section 
located on game lands, except 
Middle Prong) 
Richland Creek (Russ Avenue bridge to 
US 19A-23 bridge) Delayed Harvest 
Regulations apply. See Subparagraph 
(a)(5) of this Rule. 
(K) Henderson County: 

(Rocky) Broad River (one-half mile north of 

Bat Cave to Rutherford County line) 

Green River - upper (mouth of Bobs Creek to 

mouth of Rock Creek) 

Green River - lower (Lake Summit Dam to 

Polk Count\ lin e ) 1-26 bridge) 

Camp Creek (SR 1919 to Polk County 

line) 

(Big) Hungry River 

Little Hungry River 
French Broad River (not trout water) 
Mills River (not trout water) 

North Fork Mills River (game 
lands portion below the 
Hendersonville watershed dam). 
Dela\ed Harvest Regulations 
appK. See Subparagraph (a)(5) 
of this Rule. 
(L) Jackson County: 

Tuckasegee River (confluence with West Fork 
Tuckasegee River to SR 1392 bridge at 



958 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



PROPOSED RULES 



Wilmot) Delayed Harvest Regulations apply to 

that portion between NC 107 bridge at Love 

Field and NC 116 bridg e at W e bst e r, the 

Dillsboro dam. See Subparagraph (a)(5) of this 

Rule. 

Scott Creek (entire stream, except where 

posted against trespass) 

Dark Ridge Creek (Jones Creek to 
Scotts Creek) 

BuflF Creek (SR 1457 bridge below Bill 
Johnson's place to Scott Creek) 

Savannah Creek (Headwaters to Bradley's 

Packing House on NC 1 1 6) 

Greens Creek (Greens Creek Baptist Church on 

SR 1730 to Savannah Creek) 

Cullowhee Creek (Tilley Creek to Tuckasegee 

River) 

Bear Creek Lake 

Wolf Creek [not Hatchery Supported trout 

water, see Subparagraph (2) of Paragraph (a) 

of this Rule] 

Wolf Creek Lake 
Balsam Lake 

Tanasee Creek [not Hatchery Supported trout 

water, see Subparagraph (2) of Paragraph (a) 

of this Rule] 

Tanasee Creek Lake 

West Fork Tuckasegee River (Shoal Creek to 

existing water level of Little Glenville Lake) 
Shoal Creek (Glenville Reservoir 
pipeline to mouth) 
(M) Macon County: 

Little Tennessee River (not trout water) 

Nantahala River (Nantahala Dam to 
Swain County line) Delayed Harvest 
Regulations apply to the portion from 
Whiteoak Creek to the Nantahala Power 
and Light powerhouse discharge canal. 
See Subparagraph (a)(5) of this Rule. 
Queens Creek Lake 
Bumingtown Creek (including portions 
of tributaries on game lands) 
Cullasaja River (Sequoah Dam to US 64 
bridge near junction of SR 1672, 
including portions of tributaries on 
game lands, excluding those portions of 
Big Buck Creek and Turtle Pond Creek 
on game lands. Wild trout regulations 
apply. See Subparagraphs (2) and (6) of 
Paragraph (a) of this Rule.) 

EUijay Creek (except where 
posted against trespass, including 
portions of tributaries on game 
lands) 
Skitty Creek 

Cliffside Lake 
Cartoogechaye Creek (US 64 
bridge to Little Tennessee River) 



Tessentee Creek (Nichols Branch 
to Little Tennessee River, except 
where posted against trespassing) 
Savannah River (not trout water) 

Big Creek (base of falls to 
Georgia State line, including 
portions of tributaries within this 
Section located on game lands) 
(N) Madison County: 

French Broad River (not trout water) 
Shut-In Creek (including portions of tributaries 
on game lands) 

Spring Creek (junction of NC 209 and NC 63 
to lower US Forest Service boundary line, 
including portions of tributaries on game lands) 
Meadow Fork Creek 

Roaring Fork (including portions 
of tributaries on game lands) 
Little Creek 
Max Patch Pond 
Mill Ridge Pond 
Big Laurel Creek (Mars Hill Watershed 
boundary to Rice's Mill Dam) 
Big Laurel Creek (NC 208 bridge to US 25-70 
bridge) Delayed Harvest Regulations applv. 
See Subparagraph (a)(5) of this Rule. 

Shelton Laurel Creek (headwaters to NC 
208 bridge) 

Shelton Laurel Creek (NC 208 bridge at 
Belva to the confluence with Big Laurel 
Creek) Delaved Harvest Regulations 
applv. See Subparagraph (a)(5) of this 
Rule 

Big Creek (headwaters to lower game 
land boundary, including tributaries) 
Mill Creek 
Big Pine Creek 

Puncheon Fork (Hampton Creek to Big 
Laurel Creek) 
(O) McDowell County: 

Catawba River (portion not on game lands, not 
trout water) 

Buck Creek (portion not on game lands, 
not trout water) 

Little Buck Creek (game land 
portion including portions of 
tributaries on game lands) 
Curtis Creek (Newberry Creek to US 70 
bridge) 

North Fork Catawba River (headwaters 
toSR 1569 bridge) 

Armstrong Creek (Cato Holler 
line downstream to upper 
Greenlee line) 
Mill Creek (upper railroad bridge to 
U.S. 70 Bridge, except where posted 
against trespass) 
(P) Mitchell County: 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



959 



PROPOSED RULES 



Nolichucky River (not trout water) 

Big Roct; Creelv (headwaters to NC 226 
bridge at SR 1307 intersection) 

Little Rock Creek (Green Creek 
Bridge to Big Rock Creek, 
except where posted against 
trespass) 
Cane Creek (SR 1219 to Nolichuclq.' 
Rivep) NC 226 bridge) 
Cane Creek (NC 226 bridge to NC 80 
bridge) Dela\ed Harvest Regulations 
apply. See Subparagraph (a)(5) of this 
Rule. 

Grassy Creek (East Fork Grassy Creek 
to mouth) 

East Fork Grassy Creek 
North Toe River (Avery County line to 
SR1121 bridge) 
(Q) Polk County: 

Broad River (not trout water) 

North Pacolet River (Pacolet Falls to 
NC 108 bridge) 

Fork Creek (Fork Creek Church 
on SR 1100 to North Pacolet 
River) 

Big Fall Creek (portion above 

and below water suppK 

reservoir) 

Green River (H e nd e rson County lin e 

(Fishtop Falls Access Area to mouth of 

Brights Creek) 

Little Cove Creek (including 
portions of tributaries on game 
lands) 

Cove Creek (including portions 
of tributaries on game lands) 
Camp Creek [Henderson County 
line (top of falls) to Green River] 
Fulloms Creek (SR 1154 to 
Green River, including portions 
of tributaries on game lands) 
(R) Rutherford Count>': 

(Rock\ ) Broad River (Henderson County line 
to US 6474 bridge, except where posted 
against trespass) 
(S) Stokes Countv': 

Dan River (SR 1416 bridge downstream to a 
point 200 yards below the end of SR 1 42 1 ) 
(T) Surry County : 

Yadkin River (not trout water) 

Ararat River (SR 1727 downstream to 
the Business US 52 bridge) Delayed 
Harvest regulations appK. See 
Subparagraph (5) of Paragraph (a) of 
this Rule. 

Stewarts Creek (not trout water) 
Pauls Creek (Virginia State 
line to 0.3 mile below SR 



1625 bridge - lower Caudle 
property line) 
Fisher River (Cooper Creek) 
(Virginia State line to NC 89 
bridge) 

Little Fisher River (Virginia 
State line to NC 89 bridge) 
Mitchell River (0.6 mile upstream of the end of 
SR 1333 to Kapps Mill Dam) Delayed Harvest 
Regulations apply. See Subparagraph (5) of 
Paragraph (a) of this Rule. 
(U) Swain County: 

Little Tennessee River (not trout water) 

Calderwood Reservoir (Cheoah Dam to 
Tennessee State line) 
Cheoah Reservoir 
Fontana Reservoir (not trout water) 
Alarka Creek 

Nantahala River (Macon County 
line to existing Fontana 
Reservoir water level) 
Tuckasegee River (not trout water) 

Deep Creek (Great Smoky 
Mountains National Park 
boundary line to Tuckasegee 
River) 

ConnelK Creek (including 
portions of tributaries on game 
lands) 
(V) Transylvania Count>': 

French Broad River (junction of west and north 
forks to US 276 bridge) 

Davidson River (Averv' Creek to Ecusta 
intake) 

East Fork French Broad River (Glady 
Fork to French Broad River) 
Middle Fork French Broad River 
West Fork French Broad River (SR 
1312 and SR 1309 intersection to 
junction of west and north forks, 
including portions of tributaries within 
this Section located on game lands) 
(W) Watauga Count)-: 

New River (not trout waters) 

North Fork New River (from confluence 
with Maine and Mine branches to Ashe 
County line) 

Maine Branch (headwaters to North 
Fork New River) 

South Fork New River (not trout water) 
Meat Camp Creek 

Norris Fork Creek 
Howards Creek (downstream 
from lower falls) 
Middle Fork New River (Lake Chetola 
Dam to South Fork New River) 
Yadkin River (not trout water) 

Stonv Fork (headwaters to Wilkes 



960 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



PROPOSED RULES 



County line) 

Elk Creek (headwaters to gravel pit on 
SR 1 508, except where posted against 
trespass) 
Watauga River (SR — 1459 — at — Fo s co e 
downstream to NC 105 bridg e ) (Confluence of 
Boone Fork and Watauga River to NC 105 
bridge) Delayed Harvest Regulations apply. 
See Subparagraph (5) of Paragraph (a) of this 
Rule. 
Beech Creek 

Buckeye Creek Reservoir 
Coffee Lake 
Laurel Creek 

Cove Creek (SR 1233 bridge at Zionville to SR 
1233 bridge at Amantha) 
Dutch Creek (second bridge on SR 11 34 to 
mouth) 

Boone Fork (headwaters to SR 1 562) 
(X) Wilkes County : 

Yadkin River (not trout water) 

Roaring River (not trout water) 

East Prong Roaring River 
(Bullhead Creek to Brewer's Mill 
on SR 1943) (Delayed harvest 
regulations apply to portion on 
Stone Mountain State Park) See 
Subparagraph (5) of Paragraph 
(a) of this Rule. 

Stone Mountain Creek 
(Delayed Harvest Regulations 
apply. See Subparagraph (5) 
of Paragraph 
(a) of this Rule.) 
Middle Prong Roaring River 
(headwaters to second bridge on SR 
1736) 

Bell Branch Pond 
Boundary Line Pond 
West Prong Roaring River (not trout 
waters) 

Pike Creek 

Pike Creek Pond 
Reddies River (not trout water) 

Middle Fork Reddies River 
(Clear Prong) (headwaters to 
bridge on SR 1580) 

South Fork Reddies River 

(headwaters to confluence 

with Middle Fork Reddies 

River) 

North Fork Reddies River 

(Vannoy Creek) (headwaters 

to Union School bridge on 

SR 1559) 

Darnell Creek (North Prong 

Reddies River) (downstream 

ford on SR 1569 to 



confluence with North Fork 
Reddies River) 
Lewis Fork Creek (not trout water) 

South Prong Lewis Fork (headwaters to 
Lewis Fork Baptist Church) 

Fall Creek (except portions 
posted against trespass) 
(Y) Yancey County: 

Nolichucky River (not trout water) 

Cane River [Bee Branch (SR 1110) to 
Bowlens Creek] 

Bald Mountain Creek (except portions 
posted against trespass) 

Indian Creek (not trout water) 
Price Creek (junction of SR 1 1 20 
and SR 1121 to Indian Creek) 
North Toe River (not trout water) 
South Toe River (Clear Creek to lower 
boundary line of Yancey County 
recreation park except where posted 
against trespass) 
(2) Wild Trout Waters. All waters designated as Public 
Mountain Trout Waters on the game lands listed in 
Subparagraph (b)(2) of 1 5 A NCAC 1 OD m%A, .0104, 
are classified as Wild Trout Waters unless specifically 
classified otherwise in (A)( 1 ) of this Rule. The trout 
waters listed in this Subparagraph are also classified 
as Wild Trout Waters. 

(A) Alleghany County: 

Big Sandy Creek (portion on Stone Mountain 

State Park) 

Ramey Creek (entire stream) 

Stone Mountain Creek (that portion on Stone 

Mountain State Park) 

(B) Ashe County: 

Big Horse Creek (Virginia State Line to SR 
1361 bridge) Catch and Release/Artificial 
Lures Only Regulations apply. See 
Subparagraph (a)(3) of this Rule. 
Unnamed tributary of Three Top Creek 
(portion located on Three Top Mountain Game 
Land) Catch and Release/ Artificial Lures Onlv 
Regulations apply. See Subparagraph (a)(3) of 
this Rule. 

(C) Avery County: 

Birchfield Creek (entire stream) 
Cow Camp Creek (entire stream) 
Cranberry Creek (entire stream) 
Gragg Prong (entire stream) 
Horse Creek (entire stream) 
Jones Creek (entire stream) 
Kentucky Creek (entire stream) 
North Harper Creek (entire stream) 
Plumtree Creek (entire stream) 
Roaring Creek (entire stream) 
Rockhouse Creek (entire stream) 
South Harper Creek (entire stream) 
Webb Prong (entire stream) 



13:12 



NORTH CAROLINA REGISTER 

BO) 



December 15, 1998 

smaBsamm 



961 



PROPOSED RULES 



(D) 



(E) 



(F) 



(G) 
fWWQ 



«m 



mM 






Wilson Creek (Catch and 
Release/Artificial Lures Only 

Regulations appK. See Subparagraph 
(a)(3) of this Rule.) 

Buncombe Count> : 

Carter Creek (game land portion) (Catch and 

Release Artificial Lures onl\ regulations appK'. 

See Subparagraph (3) of Paragraph (a) of this 

Rule.) 

Burke County ; 

All waters located on South Mountain State 

Park, except the main stream of Jacob Fork 

between the mouth of Shinn\ Creek and the 

lower park boundar.' where dela\ed harvest 

regulations, and Henn. Fork and tributaries 

where catch and release artificial lures onK 

regulations apply. See Subparagraphs (3) and 

(5) of Paragraph (a) of this Rule. 

Nettle Branch (game land portion) 

Caldwell Count> : 

Buffalo Creek (Watauga Count) line to Long 

Ridge Branch) 

Joes Creek (Watauga Count} line to first falls 

upstream of the end of SR 1574) 

Rockhouse Creek (entire stream) 

Graham County: 

South Fork Squalh' Creek (entire stream) 

SqualK Creek (entire stream) 

Henderson Counts': 

Green Ri\er (1-26 bridge to Henderson Polk 

Counts line) 

Jackson County: 

Gage Creek (entire stream) 

North Fork Scott Creek (entire stream) 

Tanasee Creek (entire stream) 

Whitewater River (downstream from Silver 

Run Creek to South Carolina State line) 

Wolf Creek (entire stream, except Balsam Lake 

and Wolf Creek Lake) 

Madison Count> : 

Spillcom Creek (entire stream) [Wild 

Trout Natural Bait Waters regulations apph. 

See Subparagraph (6) of Paragraph (a) of this 

Rule.] 

Mitchell Countv': 

Green Creek (headwaters to Green Creek 

Bridge, except where posted against trespass) 

Little Rock Creek (headwaters to Green Creek 

Bridge, including all tributaries, except where 

posted against trespass) 

Wiles Creek (game land boundao. to mouth) 

Polk countv 

Green River (Henderson Counts line to Fishtop 

Falls .Access Area) 



Transvlvania Countv: 

Whitevsater River (dovsTistream from Silver 
Run Creek to South Carolina State line) 
Watauaa Counts : 



Boon e Fork (Blu e Ridg e Parkway boundary 
line to Watauga Riv e r) [Catch and R e lease Fly 

Fishing — OftJy — r e gulations — apply. See 

Subparagraph (1) of Paragraph (a) of this 

Dutch Crock (headwat e rs to s e cond 

bridg e on SR 113 4 ) 

Dutch Creek (headwaters to second 

bridge on SR 1134) 

Howards Creek (h e adwat e rs to low e r 

Howards Creek (headvsaters to lower 
falls) 

Watauga Riv e r (Av e rv' Counts lin e to 
SR 1559) 

Watauga River (Averv Countv line to 
SR 1580) 
(M){0} Wilkes Count}': 

Big Sandv Creek (portion on Stone Moimtain 
State Park) 

Garden Creek (portion on Stone Moimtain 
State Park) 

Harris Creek and tributaries [portions on Stone 
Mountain State Park) [Catch and Release 
Artificial Lures OnK regulations appK. See 
Subparagraph (4) of Paragraph (a) of this 
Rule.] 

Widow Creek (portion on Stone Mountain 
State Park) 
(N){P} Yancev' Count}': 

Lickskillet Creek (entire stream) 
Middle Creek (game land boundarv to mouth) 
Rock Creek (game land boundar}' to mouth) 
South Toe River (game land boundar} 
downstream to Clear Creek) 
(3) Catch and Release Artificial Lures OnK Trout 
Waters. Those portions of designated wild trout 
waters as listed in this Subparagraph, including 
tributaries except as noted, are further classified as 
Catch and Release Artificial Lures OnK waters. Only 
artificial lures having one single hook may be used. 
No fish may be harvested or be in possession while 
fishing these streams: 

(A) Ashe Count}': 

Big Horse Creek (Virginia State line to SR 
1361 bridge excluding tributaries) 
Unnamed tributarv of Three Top Creek 
(portion located on Three Top Mountain Game 
Lands) 

(B) Aver} Count} : 

Wilson Creek (game land portion) 

(C) Buncombe Count} : 

Carter Creek (game land portion) 

(D) Burke Count} : 

Henr} Fork (portion on South Mountains State 
Park) 

(E) Jackson Count} : 
Flat Creek 



962 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



PROPOSED RULES 



Tuckasegee River (upstream of Clarke 
property) 

(F) McDowell County: 

Newberry Creek (game land portion) 

(G) Wilkes County: 

Harris Creek (portion on Stone Mountain State 
Park) 
(H) Yancey County: 
Lower Creek 
Upper Creek 

(4) Catch and Release/ Artificial Flies Only Trout Waters. 
Those portions of designated wild trout waters as 
listed in this Subparagraph, including tributaries 
except as noted, are fiirther classified as Catch and 
Release/Fly Fishing Only waters. Only artificial flies 
having one single hook may be used. No fish may be 
harvested or be in possession while fishing these 
streams: 

(A) Avery County: 

Lost Cove Creek (game land portion, excluding 
Gragg Prong and Rockhouse Creek) 

(B) Transylvania County: 

Davidson River (headwaters to Avery Creek, 
excluding Avery Creek, Looking Glass Creek 
and Grogan Creek) 
(G) Watauga County: 

Boon e Fork (portion b e tw ee n Blue Ridge 
Parkway boundary and th e Watauga Riv e r) 
(D)(C) Yancey County: 

South Toe River (portion from the concrete 
bridge above Black Mountain Campgroup 
downstream to game land boundary, excluding 
Camp Creek and Big Lost Cove Creek) 

(5) Delayed Harvest Trout Waters. Those portions of 
designated Hatchery Supported Trout Waters as listed 
in this Subparagraph, excluding tributaries except as 
noted, are further classified as Delayed Harvest 
Waters. Between 1 October and one-half hour after 
sunset on the Friday before the first Saturday of the 
following June, inclusive, it is unlawful to possess 
natural bait and only artificial lures with one single 
hook may be used. No fish may be harvested or be in 
possession while fishing these streams during this 
time. These waters are closed to fishing between one- 
half hour after sunset on the Friday before the first 
Saturday in June and 6:00 a.m. on the first Saturday in 
June. At 6:00 a.m. on the first Saturday in June these 
streams open for fishing under Hatchery Supported 
Waters rules: 

(A) Ashe County: 
Trout Lake 

Helton Creek (Virginia state line to New River) 

(B) Burke County: 

Jacob Fork (Shinny Creek to lower South 
Mountains State Park boundary) 

(C) Haywood County: 

Richland Creek (Russ Avenue bridge to US 
19A-23 bridge) 



(D) Henderson County: 

North Fork Mills River (game land portion 
below the Hendersonville watershed dam) 

(E) Jackson County: 

Tuckasegee River (NC 107 bridge at Love 
Field Downstream to N€ — 1 1 6 bridge at 
W e bst e r) the Dillsboro dam) 

(F) Macon County: 

Nantahala River (portion from Whiteoak Creek 
to the Nantahala Power and Light power house 
discharge canal) 

(G) Madison County: 

Big Laurel Creek (HC 208 bridge to the US 25- 

70 bridge) 

Shelton Laurel Creek (NC 208 bridge at Belva 

to the confluence with Big Laurel Creek) 
(H) Mitchell County: 

Cane Creek (NC 226 bridge to NC 80 bridge) 
(G)£lj Surry County: 

Ararat River (SR 1 727 downstream to Business 

US 52 bridge) 

Mitchell River (0.6 mile upstream of the end of 

SR 1333 to Kapps Mill Dam) 
(HXJ} Watauga County: 

Watauga River (SR 1559 bridg e at Fosco e 

dovTO S tr e am to NC 1 05 bridg e ) (Confluence of 

Boone Fork and Watauga River to NC 105 

bridge) 
ffi(K) Wilkes County: 

East Prong Roaring River (from Bullhead 

Creek downstream to the Stone Mountain State 

Park lower boundary) 

Stone Mountain Creek (from falls at Allegheny 

County line to confluence with East Prong 

Roaring River and Bullhead Creek in Stone 

Mountain State Park) 
(6) Wild Trout/Natural Bait Waters. Those portions of 
designated Wild Trout Waters as listed in this 
Subparagraph, including tributaries except as noted, 
are further classified as Wild Trout/Natural Bait 
Waters. All artificial lures and natural baits, except 
live fish, are allowed provided they are fished using 
only one single hook. The creel limit, size limit, and 
open season are the same as other Wild Trout Waters 
[see 15ANCAC IOC .0305(a)]. 

(A) Cherokee County: 

Tellico River (Fain Ford to Tennessee state line 
excluding tributaries) 

(B) Clay County: 

Buck Creek (game land portion downstream of 
US 64 bridge) 

(C) Graham County: 
Deep Creek 

Long Creek (game land portion) 

(D) Jackson County: 

Chattooga River (SR 1100 bridge to South 
Carolina state line) 



13:12 



NORTH CAROLINA REGISTER December 15, 1998 



963 



PROPOSED RULES 



(lower) Fowler Creek (game land portion) 
Scotsman Creek (game land portion) 

(E) Macon County: 

Chattooga River (SR 1100 bridge to South 

Carolina state line) 

Jarrett Creek (game land portion) 

Kimsey Creek 

Overflow Creek (game land portion) 

Park Creek 

Tellico Creek (game land portion) 

Turtle Pond Creek (game land portion) 

(F) Madison County: 

Spillcom Creek (entire stream, excluding 
tributaries) 

(G) Transylvania County: 

North Fork French Broad River (game land 
portions downstream of SR 1326) 
Thompson River (SR 1 152 to South Carolina 
state line, except where posted against trespass, 
including portions of tributaries within this 
section located on game lands) 
(b) Fishing in Trout Waters 

(1) Hatchery Supported Trout Waters. It is unlawful to 
take fish of any kind by any manner whatsoever from 
designated public mountain trout waters during the 
closed seasons for trout fishing. The seasons, size 
limits, creel limits and possession limits apply in all 
waters, whether designated or not. as public mountain 
trout waters. Except in power reservoirs and city 
water supply reservoirs so designated, it is unlawfijl to 
fish in designated public mountain trout waters with 
more than one line. Night fishing is not allowed in 
most hatchery supported trout waters on game lands 
[see 1 5 A NCAC 1 OD .000 1 (b)(1)]. .0l04(b)(l)1. 

(2) Wild Trout Waters. Except as otherwise provided in 
Subparagraphs (3), (4), and (6) of Paragraph (a) of 
this Rule, the following rules apply to fishing in wild 
trout waters. 

(A) Open Season. There is a year round open 
season for the licensed taking of trout. 

(B) Creel Limit. The daily creel limit is four trout. 

(C) Size Limit. The minimum size limit is seven 



inches. 

(D) Manner of Taking. Only artificial lures having 
only one single hook may be used. No person 
shall possess natural bait while fishing wild 
trout waters except those waters listed in 1 5A 
NCAC IOC .0205(a)(6). 

(E) Night Fishing. Fishing on wild trout waters is 
not allowed between one-half hour after sunset 
and one-half hour before sunrise. 

Authorities. 113-134; 113-272; 113-292. 

.0206 TROTLINES AND SET-HOOKS 

Trotlines and set-hooks may be set in the inland waters of 
North Carolina, provided no live bait is used; except that no 
trotlines or set-hooks may be set in designated public mountain 
trout waters or in any of the impounded waters on the Sandhills 
Game Land. Land, -and m In Lake Waccamaw, trotlines or set- 
hooks may be set only fi^om October 1 through April 30. For the 
purposes of this Regulation, a set-hook is defined as any hook 
and line which is attached at one end only to a stationary or 
floating object and which is not under immediate control and 
attendance of the person using such device. Each trotline shall 
have attached the name and address of the user legibly and 
indelibly inscribed. Each trotline shall be conspicuously marked 
at each end with a flag, float, or other prominent object so that 
its location is readily discemable by boat operators and 
swimmers. Trotlines must be set parallel to the nearest shore in 
ponds, lakes, and reservoirs. All trotlines and throwlines must 
be fished at least once daily and all fish removed at that time. 
Untended trotlines, as evidenced by the absence of bait, may be 
removed from the water by wildlife enforcement officers when 
located in areas of multiple water use. 

Recognizing the safety hazards to swimmers, boaters and 
water skiers which are created by floating metal cans and glass 
jugs, it is unlawfijl to use metal cans or glass jugs as floats. This 
shall not be construed to prohibit the use of plastic jugs, cork, 
styrofoam, or similar materials as floats. 

AuthormG.S. 113-134; 113-272; 113-292. 



SECTION .0300 - GAME FISH 

.0305 OPEN SEASONS: CREEL AND SIZE LIMITS 

(a) Generally. Subject to the exceptions listed in Paragraph (b) of this Rule, the open seasons and creel and size limits are as 
indicated in the following table: 



GAME FISHES 



DAILY CREEL 
LIMITS 



MINIMUM 
SIZE LIMITS 



OPEN SEASON 



Mountain Trout: 
Wild Trout 
Waters 



7 in. 



ALL YEAR 
(exc. 2) 



Hatchery Sup- 



None 



All year, except 



964 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



PROPOSED RULES 



ported Trout 
Waters and 
undesignated 
waters 

Muskellunge and 
Tiger Mustcy 

Chain Pickerel 
(Jack) 

Walleye 



Sauger 

Black Bass: 
Largemouth 



Smallmouth 
and Spotted 

White Bass 

Sea Trout (Spotted 
or Speckled) 

Flounder 



30 in. 



None 



8 



(exes. 8 & 9) 
8 



5 
(exc. 9) 

5 
(exc. 9) 

25 

10 



None 



None 



None 



15 in. 



14 in. 
(exes. 3,7 & 10) 

12 in. 
(exes. 3,7 & 10) 

None 

12 in. 



13 in. 



March 1 to 6:00 a.m. 
on first Saturday 
in April 
(exc. 2) 

ALL YEAR 



ALL YEAR 



ALL YEAR 
(exc. 8) 

ALL YEAR 



ALL YEAR 
(exc. 17) 

ALL YEAR 



ALL YEAR 



ALL YEAR 



ALL YEAR 



Red drum (channel 


5 


18 in. 


ALL YEAR 


bass, red fish. 








puppy drum) 








Striped Bass 


8 aggregate 


16 in. 


ALL YEAR 


and their hybrids 


(exes. 1 & 5) 


(exes. 1,5 & 11) 


(exes. 5,13, & 15) 


(Morone Hybrids) 








Shad: (American 


10 aggregate 


None 


ALL YEAR 


and hickory) 


(exc. 18) 




^e*e^4*Wexcs. 18& 19) 


Kokanee Salmon 


7 


None 


ALL YEAR 


Panfishes 


None 


None 


ALL YEAR 




(exes. 4, 12.& 16) 


(exc. 12) 


(exc. 4) 


NONGAME FISHES 


None 


None 


ALL YEAR 




(exc. 14) 


(exc. 14) 


(exes. 6) 



(b) Exceptions 

(1) In the Dan River upstream from its confluence with 
Bannister River to the Brantly Steam Plant Dam, and 
in John H. Kerr, Gaston, and Roanoke Rapids 
Reservoirs, and Lake Norman, the creel limit on 
striped bass and Morone hybrids is four in the 
aggregate and the minimum size limit is 20 inches. 

(2) In designated public mountain trout waters the season 
for taking all species of fish is the same as the trout 



(3) 
(4) 



fishing season. There is no closed season on taking 

trout from Nantahala River and all tributaries 

(excluding impoundments) upstream from Nantahala 

Lake, and the impounded waters of power reservoirs 

and municipally-owned water supply reservoirs open 

to the public for fishing. 

Bass taken from Calderwood Reservoir may be 

retained without restriction as to size limit. 

On Mattamuskeet Lake, special federal regulations 



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December 15, 1998 



965 



PROPOSED RULES 



apply. 

(5) In the inland fishing waters of Cape Fear, Neuse, Pee- 
Dee, Pungo and Tar-Pamlico rivers and their 
tributaries and the Roanoke River and its tributaries, (II) 
including the Cashie. Middle, and Eastmost rivers, 
extending upstream to the first impoundment, and 

Lake Mattamuskeet, the daily creel limit for striped 

bass and their hybrids is three fish and the minimum 

length limit is 18 inches. In the Roanoke River and its (12) 

tributaries, including the Cashie, Middle, and 

Eastmost riv e rs from rivers, in the Tar-Pamlico River 

and its tributaries upstream of the Grimesland bridge 

and in the Neuse River and its tributaries upstream of 

the NC 55 bridge in Lenoir County Apri l I to Mav -34 

no feh striped bass or striped bass hybrids between 

the lengths of 22 inches and 27 inches shall be 

r e tain e d, retained during the period April 1 through 

May 31. (13) 

(6) See 15A NCAC IOC .0407 for open seasons for 
taking nongame fishes by special devices. 

(7) The maximum combined number of black bass of all 
species that may be retained per day is five fish, no 
more than two of which may be smaller than the 
applicable minimum size limit. The minimum size 
limit for all species of black bass is 14 inches, with no 
exception in Lake Luke Marion in Moore County, in 

ReedN Creek Park lakes in Mecklenburg County, in (14) 

Lake Rim in Cumberland County, in Currituck Sound 

and tributaries north of Wright Memorial Bridge, in 

North River and tributaries in Currituck and Camden ( 1 5) 

Counties north of a line between Camden Point and 

the end of SR 1 124, in High Rock Lake downstream 

of 1-85. in Badin Lake, in Falls Lake, in Lake Tillery, 

in Blewett Falls Lake, and in the New River and its 

tributaries in Onslow County. In and west of 

Madison, Buncombe. Henderson and Polk Counties (16) 

and in designated public mountain trout waters the 

minimum size limit is 12 inches. In B. Everett Jordan 

Reser\'oir and in Falls of the Neuse Reservoir, east of 

SR 1004, a minimum size limit of 16 inches, with no 

exception, applies to largemouth bass. In Falls of 

N e u se R ese rvoir, e ast of SR 1001. and Tuckertown 

Lake no black bass beUseen the lengths of 12 inches 

and 16 inches ma)' be retained, and the minimum size (17) 

limit for black bass is 16 inches, except that the daily 

creel may contain two black bass of less than 12 (18) 

inches in length. In W. Kerr Scott Reservoir there is 

no minimum size limit for spotted bass. 

(8) A minimum size limit of 1 5 inches applies to walleye 
taken from Lake James and its tributaries, and the 
daih creel limit for walle\'e is four fish in Linville 
River upstream from the NC 126 bridge above Lake 
James. 

(9) The creel limit for black bass and walleye taken from (19) 
Calderwood Reservoir is 10. 

(10) The minimum size limit for all black bass, with no 
exception, is 18 inches in the following troph> bass 
lakes: 



(A) Cane Creek Lake in Union County; 

(B) Lake Thom-A-Lex in Davidson Coimty; and 

(C) Sutton Lake in New Hanover County. 

In all impounded inland waters and their tributaries, 
except those waters described in Exceptions ( I ) and 
(5). the daily creel limit of striped bass and their 
hybrids may include not more than two fish of smaller 
size than the minimum size limit. 
In Lake Tillery, Falls Lake, High Rock Lake, Badin 
Lake, Tuckertown Lake, Lake Hyco, Lake Ram se ur 
and Ramseur, Cane Creek Lake and the Roanoke 
River downstream of the US 17 bridge in Williamston 
and its tribuaries (including the Cashie. Middle and 
Eastmost rivers and their tributaries) a daily creel limit 
of 20 fish and a minimum size limit of 8 inches apply 
to crappie. In Lake James, a daily creel limit of 20 
fish applies to crappie. 

In designated inland fishing waters of Roanoke 
Sound, Croatan Sound, Albemarle Sound, Chowan 
River, Currituck Sound, Alligator River, Scuppemong 
River, and their tributaries (excluding the Roanoke 
River and Cashie River and their tributaries), striped 
bass fishing season, size limits and creel limits shall 
be the same as those established by duly adopted rules 
or proclamations of the Marine Fisheries Commission 
in adjacent joint or coastal fishing waters. 
The daily creel and length limits for channel, white, 
and blue catfish in designated urban lakes are 
provided for in 15ANCAC IOC .0401(d). 
The Executive Director may, by proclamation, 
suspend or extend the hook-and-line season for 
striped bass in the inland and joint waters of coastal 
rivers and their tributaries. It is unlawful to violate 
the provisions of any proclamation issued under this 
authority. 

In the entire Lumber River from the Camp MacKall 
bridge (SR 1225. at the point where Richmond. 
Moore, Scotland, and Hoke counties join) to the 
South Carolina state line and in all public fishing 
waters east of 1-95, except Tar River Reservoir in 
Nash County, the daily creel limit for sunfish is 30 in 
aggregate, no more than 12 of which shall be 
redbreast sunfish. 

In Sutton Lake, no largemouth bass may be retained 
from December 1 through March 3 1 . 
In the Pee Dee River downstream from the Blewett 
Falls dam. shad may be taken with special fishing 
devices without restriction to creel limits as provided 
for in 15A NCAC IOC .0404 (b) during the permitted 
special fishing device seasons specified in 15A 
NCAC IOC .0407. American and hickory shad taken 
under this Subparagraph may be sold as authorized 
under subsection IOC .0401. 

The season for taking American and hickor> shad 
with dip nets and bow nets is March \ through 
April 30, except in Pee Dee River downstream 
from Blewett Falls dam where the season 
prescribed in 15A NCAC IOC .0407 (4) and (75) 



966 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



PROPOSED RULES 



is in effect. 

NOTE: CREEL AND SIZE LIMITS is proposed for 
amendment as follows with proposed changes with 
bold text in (a) Shad, and (b)(19) previously 
published in Volume 13, Issue 5, page 492 of the 
North Carolina Register WITH CHANGES and 
pending review by the Rules Review Commission 
at its December meeting. 

Authority G.S. 113-134: 113-292: 113-304: 113-305. 

SECTION .0400 - NONGAME FISH 

.0401 MANNER OF TAKING NONGAME FISHES: 
PURCHASE AND SALE 

(a) Except as permitted by the rules in this Section, it is 
unlawful to take nongame fishes fi"om the inland fishing waters 
of North Carolina in any manner other than with hook and line 
or grabbling. Nongame fishes may be taken by hook and line or 
grabbling at any time without restriction as to size limits or creel 
limits, except that no trotlines or set-hooks may be used in the 
impounded waters located on the Sandhills Game Land or in 
designated public mountain trout wat e rs, and waters, m In Lake 
Waccamaw, trotlines or set-hooks may be used only ft^om 
October 1 through April 30. The season for taking nongame 
fishes by other hook and line methods in designated public 
mountain trout waters shall be the same as the trout fishing 
season. 

(b) Nongame fishes, except bowfin. taken by hook and line, 
grabbling or by licensed special devices may be sold. Eels less 
than six inches in length taken from inland waters may not be 
sold and possession is limited to 200 per day for bait. 

(c) Freshwater mussels may only be taken from impounded 
waters, except mussels shall not be taken in Lake Waccamaw 
and in University Lake in Orange County. 

(d) In the posted Community Fishing Program waters listed 
below it is unlawful to take channel, white or blue catfish 
(forked tail catfish) by means other than hook and line; the daily 
creel limit for forked tail catfish is six fish in aggregate: 

Cedarock Pond, Alamance County 

Little Park Pond. Anson County 

Lake Tomahawk. Buncombe County 

Frank Liske Park Pond. Cabarrus County 

Lake Rim, Cumberland Count\' 

C.G. Hill Memorial Park Pond, Forsyth County 

Kemersville Lake. Forsyth County 

Winston Pond. Forsvlh County 

Bur-Mil Park Ponds, Guilford County 

Oka T. Hester Pond, Guilford County 

San-Lee Park Ponds, Lee County 

Kinston Neuseway Park Pond. Lenoir County 

Freedom Park Pond. Mecklenburg County 

Hornet's Nest Pond. Mecklenburg County 

McAlpine Lake. Mecklenburg County 

Lake Luke Marion, Moore County 

Lake Michael, Orange County 

River Park North Pond, Pitt County 



Big Elkin Creek, Surry County 
Apex Lake, Wake County 
Lake Crabtree. Wake County 
Shelley Lake, Wake County 
Simpkins Pond, Wake County 
Lake Toisnot. Wilson County 

Authority G.S. 113-134: 113-272: 113-292. 

SUBCHAPTER lOD - GAME LANDS REGULATIONS 

SECTION .0100 - GAME LANDS REGULATIONS 

.0102 GENERAL REGULATIONS REGARDING USE 

(a) Trespass. Entry on game lands for purposes other than 
hunting, trapping or fishing shall be as authorized by the 
landowner and there shall be no removal of any plants or parts 
thereof, or other materials, without the written authorization of 
the landowner. Travel is restricted, except by authorized 
personnel, to direct access from SR 2074 to the established 
waterfowl viewing stands on Cowan's Ford Waterfowl Refuge. 
The Wildlife Resources Commission may designate areas on 
game lands as either an Archery Zone, Saf e ty Zone Safety Zone. 
Restricted Firearms, or Restricted Zone. 

( 1 ) Archery Zone. On portions of game lands posted as 
"Archery Zones" hunting is limited to bow and arrow 
hunting only. 

(2) Safety Zone. On portions of game lands posted as 
"Safety Zones" hunting is prohibited. No person shall 
hunt or discharge a firearm or bow and arrow within, 
into, or across a posted safety zone on any game land. 

(3) Restricted Firearms Zone. On portions of game lands 
posted as "Restricted Firearms Zones" the use of 
centerfire rifles is prohibited. 

04(4') Restricted Zone. Portions of game lands posted as 
"Restricted Zones" are closed to all use by the general 
public, and entry upon such an area for any purpose is 
prohibited without first having obtained specific 
written approval of such entry or use from an 
authorized agent of the Wildlife Resources 
Commission. 

f4-K5) Establishment of Arch e r>' Archery. Restricted 
Firearms, and Restricted Zones. The Commission 
shall conduct a public input meeting in the area where 
the game land is located before establishing any 
archery or restricted zone. After the input meeting the 
public comments shall be presented to an official 
Commission meeting for final determination. 

(b) Littering. No person shall deposit any litter, trash, 
garbage, or other reftise at any place on any game land except in 
receptacles provided for disposal of such refuse at designated 
camping and target-shooting areas. No garbage dumps or 
sanitary landfills shall be established on any game land by any 
person, firm, corporation, county or municipality, except as 
permitted by the landowner. 

(c) Possessionof Hunting Devices. It is unlawful to possess 
a firearm or bow and arrow on a game land at any time except 
during the open hunting seasons or hunting days for game birds 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 

wum 



967 



PROPOSED RULES 



or game animals, other than fox, thereon unless said device is 
cased or not immediate!) available for use, provided that such 
devices may be possessed and used by persons participating in 
field trials on field trial areas and on target shooting areas 
designated by the landowner, and possessed in designated 
camping areas for defense of persons and property ; and provided 
further that .22 caliber pistols with barrels not greater than seven 
and one-half inches in length and shooting only short, long, or 
long rifle ammunition may be carried as side arms on game lands 
at any time other than by hunters during the special bow and 
arrow and muzzle-loading tlrearms deer hunting seasons and by 
individuals training dogs during closed season without field trial 
authorization. This Rule shall not prevent possession or use of 
a bow and arrow as a licensed special fishing device in those 
waters where such use is authorized. During the closed firearms 
seasons on big game (deer, bear, boar, wild turkey), no person 
shall possess a shotgun shell containing larger than No. 4 shot or 
any rifle or pistol larger than a .22 caliber rimfire while on a 
game land, except that shotgun shells containing any size steel 
or non-toxic shot may be used while waterfowl hunting. 
Furthermore, only shotguns with an> size shot may be possessed 
during the big game season for turkey. No person shall hunt 
with or have in possession any shotgun shell containing lead or 
toxic shot while hunting on any posted waterfowl impoundment 
on any game land, or while hunting waterfowl on Butner-Falls 
of Neuse Game Land or New Hope Game Land, except shotgun 
shells containing lead buckshot may be used while deer hunting. 

(d) Game Lands License: Hunting and Trapping 

( 1 ) Requirement. Except as provided in Subparagraph (2) 
of this Paragraph, an\ person entering upon an\ game 
land for the purpose of hunting, trapping, or 
participating in dog training or field trial activities 
shall have in his possession a game lands license in 
addition to the appropriate hunting or trapping 
licenses. 

(2) Exceptions 

(A) A person under 16 years of age may hunt on 
game lands on the license of his parent or legal 
guardian. 

(B) The resident and nonresident sportsman's 
licenses include game lands use privileges. 

(C) Judges and nonresidents participating in field 
trials under the circumstances set forth in 
Paragraph (e) of this Rule may do so without 
the game lands license. 

(D) On the game lands described in Rule 
.0003( e )(2) of thi s Subchapt e r .0103(e)(2) of 
this Section the game lands license is required 
only for hunting doves; all other activities are 
subject to the control of the landowners. 

(e) Field Trials and Training Dogs. A person serving as judge 
of a field trial which, pursuant to a written request from the 
sponsoring organization, has been officially authorized in 
writing and scheduled for occurrence on a game land by an 
authorized representative of the Wildlife Resources 
Commission, and any nonresident participating therein may do 
so without procuring a game lands license, provided such 
nonresident has in his possession a valid hunting license issued 



by the state of his residence. Any individual or organization 
sponsoring a field trial on the Sandhills Field Trial grounds or 
the Laurinburg Fox Trial facility shall file with the commission's 
agent an application to use the area and facility accompanied by 
the facility use fee computed at the rate of one hundred dollars 
($100.00) for each scheduled day of the trial. The total facility 
use fee shall cover the period from 12:00 noon of the day 
preceding the first scheduled day of the trial to 10:00 a.m. of the 
day following the last scheduled day of the trial. The facility use 
fee shall be paid for all intermediate days on which for any 
reason trials are not run but the building or facilities are used or 
occupied. A fee of twenty-five dollars ($25.00) per day shall be 
charged to sporting, educational, or scouting groups for 
scheduled events utilizing the club house only. No person or 
group of persons or any other entity shall enter or use in any 
manner any of the physical facilities located on the Laurinburg 
Fox Trial or the Sandhills Field Trial grounds without first 
having obtained specific written approval of such entry or use 
from an authorized agent of the Wildlife Resources Commission, 
and no such entry or use of any such facility shall exceed the 
scope of or continue beyond the specific approval so obtained. 
The Sandhills Field Trial facilities shall be used only for field 
trials scheduled with the approval of the Wildlife Resources 
Commission. No more than 16 days of field trials may be 
scheduled for occurrence on the Sandhills facilities during any 
calendar month, and no more than four days may be scheduled 
during any calendar week; provided, that a field trial requiring 
more than four days may be scheduled during one week upon 
reduction of the maximum number of days allowable during 
some other week so that the monthK maximum of 1 6 days is not 
exceeded. Before October 1 of each year, the North Carolina 
Field Trial Association or other organization desiring use of the 
Sandhills facilities between October 22 and November 18 and 
between December 3 and March 3 1 shall submit its proposed 
schedule of such use to the Wildlife Resources Commission for 
its consideration and approval. The use of the Sandhills Field 
Trial facilities at any time by individuals for training dogs is 
prohibited; elsewhere on the Sandhills Game Lands dogs may be 
trained only on Mondays. Wednesdays and Saturdays from 
October 1 through April 1. Dogs may not be trained or 
permitted to run unleashed from April 1 through August 15 on 
any game land located west of 1-95. except when participating in 
field trials sanctioned by the Wildlife Resources Commission. 
Additionally, on game lands located west of 1-95 where special 
hunts are scheduled for sportsmen participating in the Disabled 
Sportsman Program, dogs may not be trained or allowed to run 
unleashed during legal big game hunting hours on the dates of 
the special hunts. 

(f) Trapping. Subject to the restrictions contained in 15A 
NCAC lOB ,0110, .0302 and .0303, trapping of furbearing 
animals is permitted on game lands during the applicable open 
seasons, except that trapping is prohibited: 

(1) on the field trial course of the Sandhills Game Land; 

(2) on the Harmon Den and Sherwood bear sanctuaries in 
Haywood County; 

(3) in posted "safety zones" located on any game land; 

(4) by the use of multiple sets (with anchors less than 15 
feet apart) or bait on the National Forest Lands 



968 



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December IS, 1998 



13:12 



PROPOSED RULES 



bounded by the Blue Ridge Parkway on the south, US 
276 on the north and east, and NC 2 1 5 on the west; 

(5) on Cowan's Ford Waterfowl Refuge in Gaston. 
Lincoln and Mecklenburg Counties; 

(6) on the Hunting Creek Swamp Waterfowl Refuge; 

(7) on the John's River Waterfowl Reflige in Burke 
County; 

(8) on the Dupont State Forest Game Lands. 

On those areas of state-owned land known collectively as the 
Roanoke River Wetlands controlled trapping is allowed under a 
permit system. 

(g) Use of Weapons. No person shall hunt or discharge a 
firearm or bow and arrow from a vehicle, or within 200 yards of 
any building or designated camping area, or within, into, or 
across a posted "safety zone" on any game land. No person shall 
hunt with or discharge a firearm within, into, or across a posted 
"restricted zone" on any game land. 

(h) Vehicular Traffic. No person shall drive a motorized 
vehicle on any game land except on those roads constructed, 
maintained and opened for vehicular travel and those trails 
posted for vehicular travel, unless such person: 

( 1 ) is a participant in scheduled bird dog field trials held 
on the Sandhills Game Land; or 

(2) holds a Disabled Access Program Permit as described 
in Paragraph (n) of this Rule and is abiding by the 
rules described in that Paragraph. 

(i) Camping. No person shall camp on any game 
land except on an area designated by the 
landowner for camping. Camping and 
associated equipment in designated Hunter 
Camping Areas at Butner-Falls of the Neuse, 
Caswell, and Sandhills Game Lands is limited 
to Sept. 1- Feb. 29 and Apr. 7 - May 14. 
(j) Swimming. Swimming is prohibited in the lakes located 
on the Sandhills Game Land. 

(k) Disabled Sportsman Program. In order to qualify for 
special hunts for disabled sportsmen listed in 15A NCAC lOD 
.0003 .0103 an individual shall have in their possession a 
Disabled Sportsman permit issued by the Commission. In order 
to qualify for the permit, the applicant shall provide medical 
certification of one or more of the following disabilities: 

( 1 ) amputation of one or more limbs; 

(2) paralysis of one or more limbs; 

(3 ) dysftinction of one or more limbs rendering the person 
unable to perform the task of grasping and lifting with 
the hands and arms or unable to walk without 
mechanical assistance, other than a cane; 

(4) disease or injury or defect confining the person to a 
wheelchair, walker, or crutches; or 

(5) legal deafriess, meaning the inabilify to hear or 
understand oral communications with or without 
assistance of amplification devices. 

Participants in the program, except those qualify'ing by deafness, 
may operate vehicles on ungated or open-gated roads normally 
closed to vehicular traffic on Game Lands owned by the Wildlife 
Resources Commission. Each program participant may be 
accompanied by one able-bodied companion provided such 
companion has in his possession the companion permit issued 



with the Disabled Sportsman permit. 

(1) Release of Animals and Fish. It is unlawful to release pen- 
raised animals or birds, wild animals or birds, or hatchery-raised 
fish on game lands without prior written authorization. Also, it 
is unlawful to move wild fish from one stream to another on 
game lands without prior written authorization. 

(m) Non-Highway Licensed Vehicles. It is unlawful to 
operate motorized vehicles not licensed for highway use from 
May 15 through August 31 on all state-owned Game Lands. 
Such vehicles may be operated September 1 through May 14 
only on those roads constructed, maintained, and open for 
vehicular fravel and those trails posted for vehicular use. All 
operators of such vehicles shall have, in their possession, a valid 
Game Lands Use license. 

(n) Disabled Access Program. Permits issued under this 
program shall be based upon competent medical evidence 
submitted by the person verifying that a handicap exists that 
limits physical mobility to the extent that normal utilization of 
the game lands is not possible without vehicular assistance. 
Persons meeting this requirement may operate elecfric wheel 
chairs, all terrain vehicles, and other passenger vehicles on 
ungated or open-gated roads otherwise closed to vehicular traffic 
on game lands owned by the Wildlife Resources Commission 
and on game lands whose owners have agreed to such use. 
Those game lands where this special rule applies shall be 
designated in the game land rules and map book. This special 
access rule for disabled sportsmen does not permit vehicular 
access on fields, openings, roads, paths, or trails planted to 
wildlife food or cover. One able-bodied companion, who is 
identified by a special card issued to each qualified disabled 
person, may accompany a disabled person to provide assistance, 
provided the companion is at all times in visual or verbal contact 
with the disabled person. The companion may participate in all 
lawfiil activities while assisting a disabled person, provided 
license requirements are met. Any vehicle used by a qualified 
disabled person for access to game lands under this provision 
shall prominently display the vehicular access permit issued by 
the Wildlife Resources Commission in the passenger area of the 
vehicle. It shall be unlawful for anyone other than those holding 
a Disabled Access Permit to hunt, during waterfowl season, 
within 100 yards of a waterfowl blind designated by the Wildlife 
Resources Commission as a Disabled Sportsman's hunting 
blind. 



Authority G.S. 113-134: 113-264; 
113-291.5: 113-305: 113-306. 



113-270.3: 113-291.2: 



.0103 HUNTING ON GAME LANDS 

(a) Safety Requirements. No person while hunting on any 
designated game land shall be under the influence of alcohol or 
any narcotic drug, or fail to comply with special restrictions 
enacted by the National Park Service regarding the use of the 
Blue Ridge Parkway where it adjoins game lands listed in this 
Rule. 

(b) Traffic Requirements. No person shall park a vehicle on 
game lands in such a manner as to block traffic, gates or 
otherwise prevent vehicles from using any roadway. 

(c) Tree Stands. It is unlawful to erect or to occupy, for the 



13:12 



NORTH CAROLINA REGISTER December 15, 1998 



969 



PROPOSED RULES 



purpose of hunting, any tree stand or platform attached by nails. 
screws, bolts or wire to a tree on any game land designated 
herein. This prohibition shall not apply to lag-screw steps or 
portable stands that are removed after use with no metal left 
remaining in or attached to the tree. 

(d) Time and Manner of Taking. Except where closed to 
hunting or limited to specific dates by this Chapter, hunting on 
game lands is permitted during the open season for the game or 
furbearing species being hunted. On managed waterfowl 
impoundments, hunters shall not enter the posted impoundment 
areas earlier than 4:00 a.m. on the permitted hunting dates, and 
hunting is prohibited after 1 :00 p.m. on such hunting dates; 
decoys shall not be set out prior to 4:00 a.m. and must be 
removed by 3:00 p.m. each day. No person shall operate any 
vessel or vehicle powered by an internal combustion engine on 
a managed waterfowl impoundment. No person shall attempt to 
obscure the sex or age of any bird or animal taken by severing 
the head or any other part thereof or possess any bird or animal 
which has been so mutilated. No person shall place, or cause to 
be placed on any game land, salt, grain, fruit, or other foods 
without prior written authorization of the commission or its 
agent. A decision to grant or deny authorization shall be made 
based on the best management practices for the wildlife species 
in question. No person shall take or attempt to take any game 
birds or game animals attracted to such foods. No live wild 
animals or wild birds shall be removed from any game land. 

(e) Definitions: 

(1) For purposes of this Section "Eastern" season refers 
to seasons set for those counties or parts of counties 
listed in 15A NCAC lOB .0203(b)(1)(A); "Central" 
season refers to seasons set for those counties or parts 
ofcounties listed in 15ANCAC lOB .0203(b)(1)(D); 
"Northwestern" season refers to seasons set for those 
counties or parts ofcounties listed in 1 5 A NCAC lOB 
.0203(b)( 1 )(B); "Western" season refers to seasons set 
for those counties or parts ofcounties listed in 15A 
NCAC lOB .0203(b)(1)(C). 

(2) For purposes of this Section. "Dove Only Area" refers 
to a Game Land on which doves may be taken and 
dove hunting is limited to Mondays. Wednesdays. 
Saturdays and to Thanksgiving. Christmas and New 
Year's Days within the federally-announced season. 

(3) For purposes of this Section. "Three Days per Week 
Area" refers to a Game Land on which an\' game may 
be taken during the open seasons and hunting is 
limited to Mondays. Wednesdays, Saturdays and 
Thanksgiving, Christmas and New Year's Days. 
These "open days" also appK to either-sex hunting 
seasons listed under each game land. Raccoon and 
opossum hunting may continue until 7:00 a.m. on 
Tuesdays, until 7:00 a.m. on Thursdays, and until 
midnight on Saturdays. 

(4) For purposes of this Section, "Six Days per Week 
Area" refers to a Game Land on which any game may 
be taken during the open seasons, except that: 

(A) Bears shall not be taken on lands designated 
and posted as bear sanctuaries; 

(B) Wild boar shall not be taken with the use of 



dogs on such bear sanctuaries, and wild boar 
may be hunted only during the bow and arrow 
seasons, the muzzle-loading deer season and 
the regular gun season on male deer on bear 
sanctuaries; 

(C) On game lands open to deer hunting located in 
or west of the counties of Rockingham, 
Guilford, Randolph, Montgomery and Anson, 
the following rules apply to the use of dogs 
during the regular season for hunting deer with 
guns: 

(i) Except for the counties of Cherokee, 
Clay, Graham, Jackson, Macon, 
Madison. Polk, and Swain, game birds 
may be hunted with dogs. 

(ii) In the counties of Cherokee, Clay, 
Graham, Jackson, Macon, Madison, 
Polk, and Swain, small game in season 
may be hunted with dogs on all game 
lands except on bear sanctuaries. 

(D) On bear sanctuaries in and west of Madison. 
Buncombe. Henderson and Polk counties dogs 
shall not be trained or allowed to run unleashed 
between March 1 and the Monday on or 
nearest October 15; 

(f) Game Lands Seasons and Other Restrictions: 

(1 ) Alcoa Game Land in Davidson. Davie. Montgomery, 
Rowan and Stanly counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(2) Angola Bay Game Land in Duplin and Pender 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(3) Anson Game Land in Anson County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(4) Bachlelor Bay Game Land in Bertie and Washington 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(5) Bertie County Game Land in Bertie County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(^ Blad e n County Gam e Land in Bladen County 

(A) Six Day s p e r W ee k Ar e a 

(B) D ee r of e ith e r s e x may b e tak e n all the op e n 

days of the applicabl e Doer With Visibl e 



970 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



PROPOSED RULES 



Antl o r i j Sea s on. 
(€) — A special p e rmit is r e quir e d for hunting on th e 

Suggs Mill Pond portion of th e Blad e n County f^3 ¥in 
Gom e Lands. 
t-^6) Bladen Lakes State Forest Game Land in Bladen 
' County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 
Deer of either sex may also be taken the 
Saturday preceding Eastern bow season with 
bow and arrow and the Friday preceding the 
Eastern muzzle-loading season with any legal 
weapon (with weapons exceptions described in 
this Paragraph) by participants in the Disabled 
Sportsman Program. 

(C) Handguns shall not be carried and, except for f4J4 (12) 
muzzle-loaders, rifles larger than .22 caliber 

rimfire shall not be used or possessed. (44- K13) 

(D) On the Breece Tract and the Singletary Tract 
deer and bear may be taken only by still 
hunting. 

(E) Wild turkey hunting is by permit only. 
{%¥.!) Brushy Mountains Game Land in Caldwell County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six fl44 (14) 
open days of the applicable Deer With Visible 

Antlers Season. 
W(8) Bullard and Branch Hunting Preserve Game Lands in 
Robeson County 

(A) Three Days per Week Area <4^15) 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

f-l-fr>(9) Butner - Fails of Neuse Game Land in Durham, 

Granville and Wake counties f}-y K16) 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(C) Waterfowl may be taken only on Tuesdays, 
Thursdays and Saturdays, Christmas and New 

Year's Days, and on the opening and closing fW (17) 
days of the applicable waterfowl seasons. 
Waterfowl shall not be taken after 1:00 p.m. 
On the posted waterfowl impoundments a 
special permit is required for all waterfowl 
hunting after November 1 . 

(D) Horseback riding, including all equine species, f-W (18) 
is prohibited. 

(E) Target shooting is prohibited 

(F) Wild turkey hunting is by permit only. 
W- XlO) Cape Fear Game Land in Pender County 

(A) Six Days per Week Area (30^19) 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 



(C) Turkey Hunting is by permit only on that 

portion known as the Roan Island Tract. 
Caswell Game Land in Caswell County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. Deer of either sex may also be 
taken the Friday preceding the Central muzzle- 
loading season by participants in the Disabled 
Sportsman Program. 

(C) Horseback riding is allowed only during June, 
July, and August and on Sundays during the 
remainder of the year except during open 
turkey and deer seasons. Horseback riding is 
allowed only on roads opened to vehicular 
traffic. Participants must obtain a game lands 
license prior to engaging in such activity. 

Caswell Farm Game Land in Lenoir County 

(A) Dove-Only Area 

Catawba Game Land in Catawba and Iredell counties 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible 
Antlers Season. 

(C) Deer may be taken with bow and arrow only 
from the tract known as Molly's Backbone. 

Chatham Game Land in Chatham County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

Cherokee Game Land in Ashe County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

Cherry Farm Game Land in Wayne County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(C) The use of centerfire rifles and handguns is 
prohibited. 

Chowan Game Land in Chowan County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days, open days the week of 
Thanksgiving, and the last six open days of the 
applicable Deer With Visible Antlers Season. 

Chowan Swamp Game Land in Gates County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

Columbus County Game Land in Columbus County. 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



971 



PROPOSED RULES 



0^22) 



(B) 



(C) 
(D) 



(B) 



tQ 



Antlers Season. 
(34- )(20) Croatan Game Land in Carteret, Craven and Jones 
counties 

(A) Six Days per Weei< Area 

(B) Deer of either sex may be taken tiie first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) Waterfowl may be taken only on Mondays, (3*)(27} 
Wednesdays, Saturdays; on Thanksgiving, 
Christmas and New Year's Days; and on the 
opening and closing days of the applicable 
waterfowl seasons. 

(33){2_!J Dare Game Land in Dare County 

(A) Six Days per Week Area 

Deer of either sex may be taken the last six 

open days of the applicable Deer With Visible 

Antlers Season. 

No hunting on posted parts of bombing range. (39 ^28) 

The use and training of dogs is prohibited from 

March 1 through June 30. 

Dupont State Forest Game Lands in Henderson and 

Transylvania counties 

(A) Hunting is by Permit only. (5d){29} 

The training and use of dogs for hunting except 
during scheduled small game permit hunts for 
squirrel, grouse, rabbit, or quail is prohibited. 
Participants of the Disabled Sportsman 
Program may also take deer of either sex with 
any legal weapon on the Saturday prior to the 
first segment of the Western bow and arrow 
season. 
f34- K23) Dysartsville Game Land in McDowell and Rutherford 

counties 

(A) Six Days per Week Area (34)(30} 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

f3 ^24) Elk Knob Game Land in Ashe and Watauga counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six {53X1U 
open days of the applicable Deer With Visible 

Antlers Season. 
{34)£25J Gardner- Webb Game Land in Cleveland County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 

open days of the applicable Deer With Visible (^ ^32) 
Antlers Season. 
(37)t26j Goose Creek Game Land in Beaufort and Pamlico 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) On posted waterfowl impoundments waterfowl 
may be taken only on Mondays, Wednesdays, 
Saturdays; on Thanksgiving, Christmas and 
New Year's Days; and on the opening and 
closing days of the applicable waterfowl 



seasons. After November 1, on the Pamlico 
Point, Campbell Creek, Hunting Creek and 
Spring Creek impoundments, a special permit 
is required for hunting on opening and closing 
days of the duck seasons, Saturdays of the 
duck seasons, and on Thanksgiving and New 
Year's day. 

Green River Game Land in Henderson, Polk and 

Rutherford counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season in that portion in Rutherford 
County; and deer of either sex may be taken the 
last open day of the applicable Deer With 
Visible Antlers Season in that portion in Polk 
and Henderson counties. 

Green Swamp Game Land in Brunswick County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

Gull Rock Game Land in Hyde County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) On the posted waterfowl impoundments of 
Gull Rock Game Land hunting of any species 
of wildlife is limited to Mondays, Wednesdays, 
Saturdays; Thanksgiving, Christmas, and New 
Year's Days; and the opening and closing days 
of the applicable waterfowl seasons. 

Hickorynut Mountain Game Land in McDowell 
County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

Hofmann Forest Game Land in Jones and Onslow 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

Holly Shelter Game Land in Pender County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. Deer of either sex may also be 
taken the Friday preceding the Eastern muzzle- 
loading season with any legal weapon and the 
Saturday preceding Eastern bow season with 
bow and arrow by participants in the Disabled 
Sportsman Program 

(C) Waterfowl may be taken on the opening and 
closing days of the applicable waterfowl 
seasons regardless of the day of the week on 



972 



NORTH CAROLINA REGISTER 



December 15, J 998 



13:12 



PROPOSED RULES 



which they occur. 
(34 ¥33) Huntsville Community Farms Game Land in Yadkin 
County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible 
Antlers Season. 

f^ ^34) Hyco Game land in Person County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

{54){35} Jordan Game Land in Chatham, Durham, Orange and 

Wake counties f43 ¥41) 

(A) Six Days per Week Area 

Deer of either sex may be taken the first six 

open days and the last six open days of the 

applicable Deer With Visible Antlers Season. 

Waterfowl may be taken only on Mondays, f4 ^42) 

Wednesdays, Saturdays; on Thanksgiving, 

Christmas and New Year's Days; and on the 

opening and closing days of the applicable 

waterfowl seasons. 

Horseback riding, including all equine species, (44){43j 

is prohibited. 

Target shooting is prohibited. 

Wild turkey hunting is by permit only. 

f37 y36) Lantern Acres Game Land in Tyrrell and Washington 
counties 

(A) Six Days per Week Area H^44) 

(B) Deer of either sex may be taken the first six 
open days, open days the week of 
Thanksgiving, and the last six open days of the 
applicable Deer With Visible Antlers Season. 

^37) Lee Game Land in Lee County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six f44 ¥45) 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(-394 (38) Linwood Game Land in Davidson County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(40 ^39) Moore Game Land in Moore County 

(A) Six Days per Week Area (474(46) 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(444 (40) Nantahala Game Land in Cherokee. Clay. Graham, 

Jackson, Macon, Swain and Transylvania counties f4& 4(47) 
(A) Six Days per Week Area 

Deer of either sex may be taken the last open 
day of the applicable Deer With Visible 
Antlers Season in that portion located in 
Transylvania County. 

Raccoon and opossum may be hunted only 
from sunset Friday until sunrise on Saturday 



(B) 



(C) 



(D) 

(E) 
(F) 



and from sunset until 12:00 midnight on 
Saturday on Fires Creek Bear Sanctuary in 
Clay County and in that part of Cherokee 
County north of US 64 and NC 294, east of 
Persimmon Creek and Hiwassee Lake, south of 
Hiwassee Lake and west of Nottely River; in 
the same part of Cherokee County dog training 
is prohibited from March 1 to the Monday on 
or nearest October 15. 

(B) It is unlawfiil to train dogs or allow dogs to run 
unl e ashed on any gam e land in Graham County 
b e tw ee n March 1 and th e Monday on or 
n e ar e st Octob e r 15. 

Neuse River Game Land in Craven County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

New Lake Game Land in Hyde County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

North River Game Land in Currituck County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days, open days the week of 
Thanksgiving, and the last s\x open days of the 
applicable Deer With Visible Antlers Season. 

Northwest River Marsh Game Land in Currituck 
County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the fu-st six 
open days, open days the week of 
Thanksgiving, and the last six open days of the 
applicable Deer With Visible Antlers Season. 

Pee Dee River Game Land in Anson, Montgomery, 
Richmond and Stanly counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) Use of centerfire rifles prohibited in that 
portion in Anson and Richmond counties North 
ofUS-74. 

Perkins Game Land in Davie County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible 
Antlers Season. 

Person Game Land in Person County 
(A) Six Days per Week Area 



(B) 



(C) 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



■OHBaOHH 



973 



PROPOSED RULES 



(B) Deer of either sex ma\ be taken the first six 
open da\'s and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) Waterfowl ma\ be taken onK on Tuesdays, 
Thursdays and Saturdays. Christmas and New 
Year's Days, and on the opening and closing 
days of the applicable waterfowl seasons. 

f-W (48) Pisgah Game Land in Averv. Buncombe. Burke. 
Caldwell. Ha>-wood. Henderson. Madison. 
McDowell. Mitchell. Transylvania, Watauga and 
Yancey counties 

(A) Six Days per Week Area 

(B) Deer of either sex ma\' be taken the last open 
day of the applicable Deer With Visible 
Antlers Season except on that portion of Aven.- 
County north of the Blue Ridge ParkwaN and 
that portion in Haywood Count\ encompassed 
b>' US 276 on the north. US 74 on the west, 
and the Blue Ridge Parkway on the south and 
east. 

(C) Harmon Den and Sherwood Bear Sanctuaries 
in Haywood County are closed to hunting 
raccoon, opossum and wildcat. Training 
raccoon and opossum dogs is prohibited from 
March 1 to the Monda\ on or nearest October 
1 5 in that part of Madison Count> north of the 
French Broad River, south of US 25-70 and 
west of SR 1319. 

(404 (49) Pungo River Game Land in Hyde Count> 

(A) Six Days per Week Area 

(B) Deer of either sex ma\ be taken the first six 
open days and the last six open da\'s of the 
applicable Deer With Visible Antlers Season. 

(444(50) Roanoke River Wetlands in Bertie. Halifax and 
Martin counties 

(A) Hunting is b> Permit only. Vehicles are 
prohibited on roads or trails except those 
operated on official Commission business or 
b> permit holders. 
(424 (51) Robeson Game Land in Robeson Count} 

(A) Three Da\ s per Week Area 

(B) Deer of either sex ma\ be taken the last six 
open da>s of the applicable Deer With Visible 
Antlers Season. 

(4 ^52) Sampson Game Land in Sampson Count) 

(A) Three Days per Week Area 

(B) Deer of either sex ma\ be taken all the open 
da\s of the applicable Deer With Visible 
Antlers Season. 

(444 (53) Sandhills Game Land in Moore. Richmond and 
Scotland counties 

(A) Three Days per Week Area 

(B) The Deer With Visible Antlers season for deer 
consists of the open hunting dates from the 
second Monday before TTianksgiving through 
the third Saturda> after Thanksgiving except on 
the field trial grounds \s here the gun season is 
from the second Mondav before Thanksgiving 



(4§4{54} 



(55 



(C) 



(D) 



(E) 
(F) 



tGJ 



through the Saturday following Thanksgiving. 
Deer may be taken with bow and arrow on all 
open hunting dates during the bow and arrow 
season, as well as during the regular gun 
season. Deer may be taken with muz- 
zle-loading firearms on Monday. Wednesday 
and Saturday of the second week before 
Thanksgiving week, and during the Deer With 
Visible Antlers season. 

Gun either-sex deer hunting is by permit only 
the Thiirsday and Friday before Thanksgiving 
Week. For participants in the Disabled 
Sportsman Program, either-sex deer hunting 
with any legal weapon is permitted on all areas 
the Thursdav' and Friday prior to the muzzle- 
loading season described in the preceding 
paragraph. Except for the deer seasons 
indicated in the preceding paragraph and the 
managed either-sex permit hunts, the field trial 
grounds are closed to all hunting during the 
period October 22 to March 3 1 . 
In addition to the regular hunting days, 
waterfowl may be taken on the opening and 
closing days of the applicable waterfowl 
seasons 

Wild turkey hunting is by permit onh'. 
Dove hunting on the field trial grounds will be 
prohibited from the second Sunda\ in 
September through the remainder of the 
hunting season. 
No all terrain vehicles shall be used on the J. 



Robert Gordon Field Trial Area except by 
licensed hunters during deer and dove open 
seasons pursuant to 15ANCAC 10D.0102(m). 
Sauratown Plantation Game Land in Stokes County 

(A) Tiiree Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible 
Antlers Season. 

Scuppemong Game Land in T\Trell and Washington 
counties 

(A) Six Davs per Week Area 

(B) Deer of either sex ma\ be taken the first six 
open davs. open da\'s the week of 
Thanksgiving, and the last six open da\s of the 
applicable Deer With Visible Antlers Season. 

(56) Shearon Harris Game Land in Chatham and Wake 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex ma\ be taken the first six 
open da>'s and the last six open da\ s of the 
applicable Deer With Visible Antlers Season. 

(C) Waterfowl ma> be taken onl\ on Tuesda>s. 
Fridays. Saturdays: on Thanksgiving. 
Christmas and New Year's Da\s; and on the 
opening and closing da>s of the applicable 
waterfowl seasons. 

(57) South Mountains Game Land in Burke. Cleveland. 



974 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



PROPOSED RULES 



McDowell and Rutherford counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(58) Suggs Mill Pond Game Land in Bladen County : 
Hunting is by Permit only. 
(#*){59} Sutton Lake Game Land in New Hanover County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(#9)£60} Three Top Mountain Game Land in Ashe County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

f60 ^61) Thurmond Chatham Game Land in Wilkes County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. Participants of the Disabled 
Sportsman Program may also take either-sex 
deer with bow and arrow on the Saturday prior 
to Northwestern bow and arrow season. 

(C) Horseback riding is only allowed during June, 
July, and August and on Sundays during the 
remainder of the year except during open 
turkey and deer seasons. Horseback riding is 
allowed only on roads opened to vehicular 
traffic. Participants must obtain a game lands 
license prior to horseback riding on this area. 

(44-){62} Toxaway Game Land in Transylvania County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible 
Antlers Season. Participants of the Disabled 
Sportsman Program Door may also take deer of 
either sex with any legal weapon on the 
Saturday prior to the first segment of the 
Western bow and arrow season. 

(63 4(63) Uwharrie Game Land in Davidson, Montgomery and 
Randolph counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last open six days of the 
applicable Deer With Visible Antlers Season. 

{6^X64} Vance Game Land in Vance County 



(A) 
(B) 



(C) 



Six Days per Week Area 
Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

The use of dogs, centerfire rifles and handguns 
for hunting deer is prohibited on the Nutbush 
Peninsula tract. 
(64 )(65) White Oak River Impoundment Game Land in 
Onslow County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(C) Waterfowl may be taken on the opening and 
closing days of the applicable waterfowl 
seasons regardless of the day of the week on 
which they occur. 

{6#X66j Yadkin Game Land in Caldwell County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(g) On permitted type hunts deer of either sex may be taken 
on the hunt dates indicated on the permit. Completed 
applications must be received by the Commission not later than 
the first day of September next preceding the dates of hunt. 
Permits shall be issued by random computer selection, shall be 
mailed to the permittees prior to the hunt, and shall be 
nontransferable. A hunter making a kill must tag the deer and 
report the kill to a wildlife cooperator agent or by phone. 

(h) The following game lands and refiiges shall be closed to 
all hunting except to those individuals who have obtained a valid 
and current permit from the Wildlife Resources Conunission: 
Bertie, Halifax and Martin counties—Roanoke River 
Wetlands; 

Bertie County-Roanoke River National Wildlife 
Refuge. 

Burke County—John's River Waterfowl Refuge 
Dare County-Dare Game Lands (Those parts of 
bombing range posted against hunting) 
Davie— Hunting Creek Swamp Waterfowl Refuge 
Gaston, Lincoln and Mecklenburg counties-Cowan's 
Ford Waterfowl Refuge. 

Henderson and Transylvania counties— Dupont State 
Forest Game Lands 



Authority' 
113-305. 



G.S. 113-134: 113-264; 113-291.2; 113-291.5; 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



975 



TEMPORAR Y RULES 



The Codifier of Rules has entered the following temporary rulels) in the North Carolina Administrative Code. Pursimnt to G.S. 
150B-21. He), publication of a temporary rule in the North Carolina Register ser\'es as a notice of rule-making proceedings 
unless this notice has been previously published by the agency. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Rule-making Agency: Coastal Resources Commission 

Rule Citation: ISA NCAC 7 M .0401 - .0403 

EfTective Date: December 22. 1998 

Findings Reviewed by Julian Mann III: .Approved 

Authority for the rule-making: G.S. 113.4-24: 113.4-102(b/: 
113.4-10' 

Reason for Proposed Action: A reviev,' of the current rules 
and scientific literature identified a need to make minor 
amendments to the energy policies to protect key fisheries 
habitat and endangered seabirds from potential impacts from 
offshore development or energy resources. 

Comment Procedures: Contact Kim Crawford. NC Division 
of Coastal Management. PO Box 2768'. Raleigh. NC 27611- 
7687. (919) 733-2293. by January 4. 1999. 

CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7M - GENERAL POLICY 
GUIDELINES FOR THE COASTAL AREA 

SECTION .0400 - COASTAL ENERGY POLICIES 

.0401 DECLARATION OF GENERAL POLICY 

(a) It is hereby declared that the general welfare and public 
interest require that reliable sources of energy be made available 
to the citizens of North Carolina. It is further declared that the 
development of energy facilities and energy' resources within the 
state and in offshore waters can serve important regional and 
national interests. However, unwise development of energy 
facilities or energ\ resources can conflict with the recognized 
and equal K important public interest that rests in conserving and 
protecting the valuable land and water resources of the state and 
nation. particularK coastal lands and waters. Therefore, in order 
to balance the public benefits attached to necessary energy 
development against the need to protect valuable coastal 
resources, the planning of future land uses, the exercise of 
regulatory authoritv. and determinations of consistencv with the 
North Carolina Coastal Management Program shall assure that 
the development of energv facilities and energy resources shall 
avoid significant adverse impact upon vital coastal resources or 
uses, public trust areas and public access rights. 

(b) Exploration for the development of offshore and Outer 
Continental Shelf (OCS) energy resources has the potential to 
affect coastal resources. The Federal Coastal Zone Management 



Act of 1972. as amended, requires that federal oil and gas 
leasing actions of the US Department of the Interior be 
consistent to the maximum extent practicable with the 
enforceable policies of the federally approved North Carolina 
Coastal Management Program, and that exploration, 
development and production activities associated with such 
leases comply with those enforceable policies. Enforceable 
policies applicable to OCS activities include all the provisions 
and policies of this Rule, as well as any other applicable 
federally approved components of the North Carolina Coastal 
Management Program. All permit applications, plans and 
assessments related to exploration or development of OCS 
resources and other relevant energy facilities must contain 
sufficient information to allow adequate analysis of the 
consistency of all proposed activities with these Rules and 
policies. 

History Note: Authorit\- G.S. 113A-102{b): 113A-107: 

113A-124: 

Eff. March 1. 1979; 

Amended Eff November 3. 1997 pursuant to E.O. 121. James B. 

Hunt Jr. 199'': 

Temporary Amendment Eff. December 22, 1998. 

.0402 DEFINITIONS 

(a) "Impact Assessment" is an analysis which fully discusses 

the potential environmental, economic and social consequences 

of a proposed project. At a minimum, the assessment shall 

include the following information: and for each of the following 

shall discuss and assess any effects on any land or water use or 

natural resource of the coastal area, including the effects within 

the coastal area caused by activities outside the coastal area. 

(1) a full discussion of the preferred sites for those 

elements of the project affecting any land or water use 

or natural resource of the coastal area. 

(A) In all cases where the preferred site is located 
within an area of environmental concern 
(AEC) or on a barrier island, the applicant shall 
identify' alternative sites considered and present 
a full discussion [in terms of Subparagraphs 
(a)(2) through (8) of this Rule] of the reasons 
whv' the chosen location was deemed more 
suitable than another feasible alternate site. 

(B) If the preferred site is not located within an 
AEC or on a barrier island, the applicant shall 
present reasonable evidence to support the 
proposed location over a feasible alternate site. 

(C) In those cases where an applicant chooses a 
site previously identified by the state as 
suitable for such development and the site is 
outside an AEC or not on a barrier island, 
alternative site considerations shall not be 
required as part of this assessment procedure; 



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TEMPORAR Y RULES 



(2) a full discussion of the economic impacts, both 
positive and negative, of the proposed project. This 
discussion shall focus on economic impacts to the 
public, not on matters that are purely internal to the 
corporate operation of the applicant. No proprietary 

* or confidential economic data shall be required. This 

discussion shall include analysis of likely adverse 
impacts upon the ability of any governmental unit to 
furnish necessary services or facilities as well as other 
secondary impacts of significance; 

(3) a full discussion of potential adverse impacts on 
ostuarin e or coastal r e sourc e s, coastal, including 
marine and estuarine resources and wildlife resources, 
as defined in G.S. 113A-129: 

(4) a full discussion of potential adverse impacts on 
existing industry and potential limitations on the 
availability of natural resources, particularly water, 
for fiiture industrial development; 

(5) a full discussion of potential significant adverse 
impacts on recreational uses and scenic, 
archaeological and historic resources; 

(6) a full discussion of potential risks of danger to human 
life or property; 

(7) a full discussion of the procedures and time needed to 
secure an energy facility in the event of severe 
weather conditions, such as extreme wind, currents 
and waves due to northeasters and hurricanes; 

f?) £8} other specific data necessary for the various state and 

federal agencies and commissions with jurisdiction to 

evaluate the consistency of the proposed project with 

relevant standards and guidelines; 

(^{9} a specific demonstration that the proposed project is 

consistent with relevant local land use plans and with 

guidelines governing land uses in AECs. 

If appropriate environmental documents are prepared and 

reviewed under the provisions of the National Environmental 

Policy Act (NEPA) or the North Carolina Environmental Policy 

Act (NCEPA), this review will satisfy this definition of "impact 

assessment" if all issues listed in this Rule are addressed and 

these documents are submitted in sufficient time to be used to 

review state permit applications for the project or subsequent 

consistency determinations. 

(b) "Major energy facilities" are those energy facilities which 
because of their size, magnitude or scope of impacts, have the 
potential to affect any land or water use or natural resource of 
the coastal area. For purposes of this definition, major energy 
facilities shall include, but are not necessarily limited to, the 
following: 

(1) Any facility capable of refining oil; 

(2) Any terminals (and associated facilities) capable of 
handling, processing, or storing liquid propane gas, 
liquid natural gas, or synthetic natural gas; 

(3) Any oil or gas storage facility that is capable of 
storing 15 million gallons or more on a single site; 

(4) Electric generating facilities 300 MOW or larger; 

(5) Thermal energy generation; 

(6) Major pipelines 12 inches or more in diameter that 
carry crude petroleum, natural gas, liquid natural gas. 



liquid propane gas, or synthetic gas; 

(7) Structures, including drillships and floating platforms 
and structures relocated from other states or countries, 
located in offshore waters for the purposes of 
exploration for, or development or production of, oil 
or natural gas; and 

(8) Onshore support or staging facilities related to 
exploration for, or development or production of, oil 
or natural gas. 

(c) "Offshore waters" are those waters seaward of the state's 
three-mile offshore jurisdictional boundary in which 
development activities may impact any land or water use or 
natural resource of the state's coastal area. 

History Note: Authoritv G.S. 113A-} 02(b); U3A-107: 

113A-124: 

Eff. March 1. 1979; 

Amended Eff. October 1, 1988; 

Amended Eff. November 3. 1997 pursuant to E.O. 121, James B. 

Hunt Jr., 1997; 

Temporary Amendment Eff. December 22. 1998. 

.0403 POLICY STATEMENTS 

(a) The placement and operations of major energy facilities in 
or affecting any land or water use or natural resource of the 
North Carolina coastal area shall be done in a manner that allows 
for protection of the environment and local and regional 
socio-economic goals as set forth in the local land-use plan(s) 
and State guidelines in 15A NCAC 7H and 7M. The placement 
and operation of such facilities shall be consistent with 
established state standards and rules and shall comply with local 
land use plans and with guidelines for land uses in AECs. 

(b) Proposals, plans and permit applications for major energy 
facilities to be located in or affecting any land or water use or 
natural resource of the North Carolina coastal area shall include 
a full disclosure of all costs and benefits associated with the 
project. This disclosure shall be prepared at the earliest feasible 
stage in plarming for the project and shall be in the form of an 
impact assessment prepared by the applicant as defined in 1 5A 
NCAC 7M .0402. 

(c) Local governments shall not unreasonably restrict the 
development of necessary energy facilities; however, they may 
develop siting measures that will minimize impacts to local 
resources and to identify potential sites suitable for energy 
facilities. 

(d) Energy facilities that do not require shorefront access 
shall be sited inland of the shoreline areas. In instances when 
shoreline portions of the coastal zone area are necessary 
locations, shoreline siting shall be acceptable only if it can be 
demonstrated that coastal resources and public trust waters will 
be adequately protected, the public's right to access and passage 
will not be unreasonably restricted, and all reasonable mitigating 
measures have been taken to minimize impacts to AECs. 

(e) The scenic and visual qualities of coastal areas shall be 
considered and protected as important public resources. Energy 
development shall be sited and designed to provide maximum 
protection of views to and along the ocean, sounds and scenic 
coastal areas, and to minimize the alteration of natural 



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977 



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landforms. 

(0 All energy facilities in or affecting any land or water use 
or natural resource of the coastal area shall be sited and operated 
so as to b e consist e nt comply with the following criteria, to th e 
maximum e xt e nt practicabl e. (7) 

(1) Risks of environm e ntal harm to fish spovsTiing ar e as. 

in or affecting th e coastal ar e a, shall b e ass esse d and (8) 

minimized. Adverse impacts on resources of the 

coastal area, including marine and estuarine resources 

and wildlife resources, as defined in G.S. 1 13A-129. 

and adverse impacts on land or water uses in the 

coastal area shall be avoided unless site specific (9) 

information demonstrates that there will be no adverse 

impacts on land or water uses or natural resources of 

the coastal area. 

(2) Risks of environmental harm to coastal resources and 
uses shall be assessed and minimized. Necessary data 

and information required by the state for state permits ( 1 0) 

and federal consistency reviews, pursuant to 15 CFR 
part 930, shall completely assess the risks of oil spills, 
evaluate possible trajectories, and enumerate response 
and mitigation measures employing the best available 
technolog}' to be followed in the event of a spill. The 
information must demonstrate that the potential for oil 
spills and ensuing damage to coastal resources has 
been minimized and shall factor environmental 
conditions, currents, winds, and inclement events such 
as northeasters and hurricanes, in trajectorv scenarios. 
For facilities requiring an Oil Spill Conting e ncy 
Response Plan, this information shall be included in 
such a plan. 

(3) Dredging, spoil disposal and construction of related 
structures that are reasonably likelv' to affect any land 
or water use or natural resource of the coastal area 
shall be minimized, and any unavoidable actions of 
this sort shall minimize damage to the marine 
environment. 

(4) Damage to or interference with existing or traditional 
uses, such as fishing, navigation and access to public 
trust areas, and areas with high biological or 
recreational value, shal 1 be avoided to the extent that (11) 
such damage or interference is reasonablv likely to 

affect any land or water use or natural resource of the 
coastal area. 

(5) Placement of structures in geologically unstable areas, 
such as unstable sediments and active faults, shall be 
avoided to the extent that damage to such structures 
resulting from geological phenomena is reasonably 
likely to affect any land or water use or natural 
resource of the coastal area. 

(6) Wildlif e d es truction or r e location shall b e ass es s e d 

and minimiz e d to th e e xt e nt that s uch d e struction or (12) 

r e location is r e asonabU lik e ly to aff e ct any land or 
wat e r u se or natural r es ourc e of th e coastal ar e a. 
Procedures necessary to secure an energy facility in (13) 

the event of severe weather conditions, such as 
extreme wind, currents and waves due to northeasters 
and hurricanes, shall be initiated sufficiently in 



advance of the commencement of severe weather to 
ensure that adverse impacts on any land or water use 
or natural resource of the coastal area shall be 
avoided. 

Adverse impacts on species identified as threatened or 
endangered on Federal or State lists shall be avoided. 
Major energy facilities are not appropriate uses in 
fragile or historic areas, and other areas containing 
environmental or natural resoitrces of more than local 
significance, such as parks, recreation areas, wildlife 
refuges, and historic sites. 

No energy facilities shall be sited in areas where they 
pose a threat to the integrity of the facility and 
surrounding areas, such as ocean front areas with high 
erosion rates, areas having a history of overwash or 
inlet formation, and areas in the vicinity of existing 
inlets. 

In the siting of energy facilities and related structures, 
the following areas shall be avoided to the maximum 
extent practicabl e : feasible: 

(A) areas of high biological significance, including 
offshore reefs, rock outcrops and hard bottom 
areas, sea turtle nesting beaches, freshwater 
and saltwater wetlands, primary nursery' areas, 
submerged aquatic vegetation beds, shellfish 
beds, anadromous fish spawning and nursery 
areas, and colonial bird nesting colonies; 
major tracts of maritime forest and other 
important natural areas as identified by the 
North Carolina Natural Heritage Program; 
crossings of sfreams, rivers, and lakes except 
for existing readily-accessible corridors; 
anchorage areas and congested port areas; 
artificial reefs, shipyvrecks, and submerged 
archaeological resources; 
dump sites; 

areas of large dunes or well-developed frontal 
dune systems; 

heavily developed and heavily used recreation 
areas. 
Where impacts — en — th e s e the areas listed 



(B) 



(C) 

(D) 
(E) 

(F) 
(G) 

(H) 



m 



Subparagraph (jQ (10) ofthis Rule cannot be avoided, 
and the impact siting of the energy facility affects any 
land or water use or natural resource of the coastal 
area, damage due to siting shall be mitigated to the 
maximum extent practicabl e feasible and jn 
compliance with any other standard in this Section. 
and affected areas shall be restored to their original 
functions pursuant to a plan of reclamation, which 
must be a part of the consistency determination or 
permit. 

Construction of energy facilities shall occur only 
during periods of lowest biological vulnerability'. 
Nesting and spawning periods shall be avoided. 
If facilities located in the coastal area are abandoned, 
habitat of equal value to or greater than that existing 
prior to construction shall be restored as soon as 
practicable following abandonment. For abandoned 



978 



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December 15, 1998 



13:12 



TEMPORAR Y R ULES 



facilities outside the coastal area, habitat in the areas 
shall be restored to its preconstruction state and 
functions as soon as practicable if the abandonment of 
the structure is reasonably likely to affect any land or 
water use or natural resource of the coastal area. 

History Note: Authority G.S. 113A-1 02(b); 1134-107; 

113A-124; 

Eff. March 1. 1979; 

Amended Eff. April 1, 1992; 

Amended Eff. November 3. 1997 pursuant to E.O. 121. James B. 

Hunt Jr. 1997; 

Temporary' Amendment Eff. December 22, 1998. 

'k-k'k-k-k'k'k-kic-k-kit-k-k'kit-k-k-k-k 

Rule-making Agency: Division of Environmental Health 

Rule Citation: 15A NCAC 18A . 1611 

Effective Date: January 1. 1999 

Findings Reviewed by Beecher R. Gray: Approved 

Authority for the rule-making: G.S. 95-225; 130A-5(3); 
130A-230; BOA 235; 130A-236; 130-248; 130A-257 

Reason for Proposed Action: The proposed temporary' rule is 
presented in response SB 11 71. This Bill requires that no later 
than January 1. 1999. the Commission for Health Services adopt 
a temporary rule in accordance with G.S. 150B- 21.1 that 
provides specific guidelines for waiving the existing water 
supply well setback requirements contained in 15A NCAC 18A 
.1720 for institutions and facilities located in single-family 
dwellings. The Bill requires that the Commission determine 
specific criteria under which 15A NCAC 18A .1720 may be 
waived while still protecting the public health. 

Comment Procedures: Written comments may be submitted to 
Bart Campbell. DENR. Division of Environmental Health, PO 
Box 29534, Raleigh. NC 27626-0534. 

CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18A - SANITATION 

SECTION .1600 - SANITATION OF RESIDENTIAL 
CARE FACILITIES 

.1611 WATER SUPPLY 

(a) Water supplies shall meet the requirements in 1 5 A NCAC 
1 8 A .1700. .1700; however wells shall be approved without 
meeting the setback to building foundation requirements found 
in 15A NCAC 18A .1720. if water sampling in accordance with 
Paragraph (b) of this Rule does not indicate a health threat. 

(b) At least once a year, samples of water shall be collected 
by the Department and submitted to the North Carolina State 



Laboratory of Public Health or other laboratory certified by the 
Department to perform examinations for Nitrates and Coliform 
bacteria. However If the well supply serv e s a family foster 
hom e or a private r e sidence r e gulated by th e s e Rul e s and the 
weM is located at l e ast 10 f ee t but less than 25 feet from a 
building foundation, the well shall also be sampled for 
p e sticid e s, nitrates, and bact e ria pesticides upon application for 
licensure or approval. After the initial pesticide sample is 
collected and analyzed, the well shall be sampled again for 
pesticides following any treatment for structural pests. 

(c) No backflow connections or cross connections with 
unapproved supplies shall exist. 

(d) Adequate hot water heating facilities shall be provided. 
Hot and cold rurming water under pressure shall be provided to 
food preparation areas and any other areas in which water is 
required for cleaning. 

History Note; Authoritv G.S. 95-225; 130A-5(3); 130A-230; 

130A-235; 130A-236; 130A-248; 130A-257; 

Eff. February 1, 1976; 

Readopted Eff. December 5. 1977; 

Amended Eff. July 1. 1994; September 1. 1990; 

Temporary Amendment Eff. Januar\' 1^ 1999; May 5, 1998. 

******************** 

Rule-making Agency: N.C. Commission for Health Senices 

Rule Citation: 15A NCAC 18A . 1952. . 1953, .1954. . 1955 

Effective Date: January 1. 1999 

Findings Reviewed and approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 130A-335(e)(f); 130A- 
335.1 

Reason for Proposed Action: The 1998 "short" session of the 
N.C. General Assembly ratified on August 19, 1998, and the 
Governor on August 28, 1998, HB 1462 which requires the 
Commission for Health Services to adopt temporary rules 
governing effluent filters and access devices for septic tank 
systems by December 1, 1998 and temporary rules to be 
effective on January 1. 1999. <Ref Section 3. S.L 1998-126) 

Comment Procedures: Written comments on amendments to 
Sewage Rules (15A NCAC 18A .1900 et seq.) should be 
submitted to Steve J. Steinbeck. On-Site Wastewater Section, 
P.O. Box 29594, Raleigh, NC 27626-0594 or emailed to 
Steve _steinbeck a.mail. enr state, nc. us. 

CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18A -SANITATION 

SECTION .1900 - SEWAGE TREATMENT AND 
DISPOSAL SYSTEMS 



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979 



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TEMP0R.4R Y R ULES 



.1952 SEPTIC TANK, DOSING TANK AND LIFT 
STATION DESIGN 

(a) A septic tank or dosing tank shall be watertight, 
structurally sound, and not subject to excessive corrosion or 
decay. Septic tanks shall be of rwo-compartment design. The 
inlet compartment of a two-compartment tank shall hold bet^Aeen 
two-thirds and three-fourths of the total tank capacity. Septic 
tanks shall have an approved effluent filter and access devices. 
The effluent filter shall function without a bypass of unfiltered 
wastewater, sludge or scum. The effluent filter case shall be 
designed to function as a sanitar. tee with the inlet extending 
down to betvseen 25 and 40 percent of the liquid depth. The 
requirement(s) for an effluent filter and access devices shall 
appK' to septic tanks for which a Construction Authorization is 
issued on or after Januar\ J^ 1999. A properK designed dosing 
siphon or pump shall be used for discharging sewage effluent 
into nitrification lines when the total length of such lines exceeds 
750 linear feet in a single system and as required for any 
pressure-dosed SNStem. When the design daily flow from a 
single system exceeds 3.000 gallons per day or when the total 
length of nitrification lines exceeds 2.000 linear feet in a single 
SNStem. alternating siphons or pumps shall be used which shall 
discharge to separate nitrification fields. The dose volume from 
pump or siphon s\ stems shall be of such design so as to fill the 
nitrification lines irom 66 percent to 75 percent of their capacity 
at each discharge except as required for low-pressure 
distribution s>stems. The discharge rate from dosing s\'stems 
shall be designed to maximize the distribution of the effluent 
throughout the nitrification field. Septic tanks installed where 
the top will be deeper than 50 six inches below the finished 
grade shall have an access manhol e , manhole over each 
compartment with cover, extending to within six inches of the 
finished grade, having a minimum opening adequate to 
accommodate the installation or removal of the septic tank Mr 
lid, septage removal, and maintenance of the effluent filter. 
When the top of the septic tank or access manhole is below the 
finished grade, the location of each manhole shall be visibly 
marked at finished grade. Any SNStem serving a design unit 
with a design sewage flow greater than 3.000 gallons per day 
shall have access manhol es ov e r e ach compartm e nt and ov e r th e 
outl e t sanitary t ee . — Th e acc ess manholes shaH that extend at 
least to finished grade and be designed and maintained to 
prevent surface water inflow. The manholes shall be sized to 
allow proper inspection and maintenance. All dosing tanks shall 
ha\e a properK functioning high-water alarm. The alarm shall 
be audible and visible by system users and weatherproof if 
installed outdoors. The alarm circuit shall be pro\ ided with a 
manual disconnect in a watertight, corrosion-resistant outside 
enclosure (NEMA 4X or equivalent) adjacent to the dosing tank. 

(b) Minimum liquid capacities for septic tanks shall be in 
accordance with the following: 



(1) 


Residential 


Septic Tanks 


(for 


each individual 




residence or 


dw 


elling unit): 






Number of 






Mmimum Liq 


Liid 


Equnalent Capacm 


Bedrooms 






Capacin. 




Per Bedroom 


3 or less 






900 aallons 




300 aallons 


4 






1.000 sallons 




250 aallons 


5 






1.250 gallons 




250 gallons 



(2) Septic tanks for large residences, multiple dwelling 



units, or places of business or public assembly shall 
be in accordance with the following: 

(A) The minimum liquid capacity of septic tanks 
for places of business or places of public 
assembly with a design sewage flow of 600 
gallons per day or less shall be determined in 
accordance with the following: V = 2Q; where 

V is the liquid capacity of the septic tank and Q 
is the design daily sewage flow. 

(B) Individual residences with more than five 
bedrooms. multiple-family residences, 
individual septic tank systems serving two or 
more residences, or any place of business or 
public assembly where the design sewage flow 
is greater than 600 gallons per day. but less 
than 1 .500 gallons per day, the liquid capacity 
of the septic tank shall be designed in 
accordance with the following: V = 1.17Q + 
500; where V is the liquid capacity of the 
septic tank and Q is the design daily sewage 
flow. The minimum liquid capacity of a septic 
tank serving two or more residences shall be 
1,500 gallons. 

(C) Where the design sewage flow is between 
1.500 gallons per day and 4.500 gallons per 
day, the liquid capacity of the septic tank shall 
be designed in accordance with the following: 

V = 0.75O - 1,125; where V is the liquid 
capacity of the septic tank and Q is the design 
daily sewage flow. 

(D) Where the design sewage flow exceeds 4,500 
gallons per day. the septic tank shall be 
designed in accordance with the following: V 
= Q; where V is the liquid capacity of the 
septic tank and Q is the design daily sewage 
flow. 

(E) The minimum liquid capacity requirements of 
Subparagraph (b)(2) of this Rule shall be met 
by use of a single two-compartment septic tank 
or by two tanks installed in series, provided the 
first tank is constructed without a baffle wall 
and contains at least two-thirds of the total 
required liquid capacity. 

(3) The minimum capacity of any septic tank shall be 750 
gallons, 
(c) The following are minimum standards of design and 
construction of pump tanks and pump dosing systems: 

(1) The liquid capacity of a pump lank shall be 
considered as the entire internal volume with no 
additional requirement for freeboard. Pump tanks 
shall have a minimum liquid capacity in accordance 
with the following: 

(A) Pump tanks for systems with nitrification fields 
installed in Soil Group 1. II, or III soils, as 
defined in these Rules, shall have a minimum 
liquid capacity equal to tyvo-thirds of the 
required septic tank liquid capacity. 

(B) Pump tanks for systems installed in Group IV 



980 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



TEMPORAR Y RULES 



soils shall have a minimum liquid capacity 
equal to the required septic tank liquid 
capacity. 

(C) The minimum liquid capacity of any pump tank 
shall be 750 gallons. 

(D) An alternate method to determine minimum 
liquid capacity of a pump tank shall be to 
provide for the minimum pump submergence 
requirement (Subparagraph (c)(5) of this Rule), 
the minimum dose volume requirement 
(Paragraph (a) of this Rule), and the minimum 
emergency storage capacity requirement. The 
emergency storage capacity requirement is 
determined based on the type of facility served, 
the classification of surface waters which 
would be impacted by a pump tank failure, and 
the availability of standby power devices and 
emergency maintenance personnel. The 
emergency storage capacity shall be the 
freeboard space in the pump tank above the 
high-water alarm activation level plus the 
available freeboard space in previous tankage 
and in the collection system below the lowest 
ground elevation between the pump tank and 
the lowest connected building drain invert. 
The minimum emergency storage capacity for 
residential systems and other systems in 
full-time use on sites draining into WS-I, 
WS-Il. WS-IIl, SA, SB, and B waters shall be 
24 hours, without standby power, or 1 2 hours 
with standby power manually activated, or four 
hours with standby power automatically 
activated or with a high-water alarm 
automatically contacting a 24-hour 
maintenance service. The minimum emergency 
storage capacity for systems not in full-time 
use and for all systems at sites draining into all 
other surface waters shall be 12 hours without 
standby power, or eight hours with standby 
power manually activated, or four hours with 
standby power automatically activated or with 
a high-water alarm automatically contacting a 
24-hour maintenance service. 

(E) Notwithstanding Paragraphs (c)(1) (A)-(D), 
other criteria for pump tank capacity may be 
approved by the local health department and 
the State for raw sewage lift stations, pressure 
sewer systems, and systems with design flows 
exceeding 3,000 gallons per day. 

(2) The effluent pump shall be capable of handling at 
least one-half inch solids and designed to meet the 
discharge rate and total dynamic head requirements of 
the effluent distribution system. The pump shall be 
listed by Underwriter's Laboratory or an equivalent 
third party electrical testing and listing agency, unless 
the proposed pump model is specified by a registered 
professional engineer. 

(3) Pump discharge piping shall be of Schedule 40 PVC 



or stronger material and adequately secured. Fittings 
and valves shall be of compatible corrosion-resistant 
material. A threaded union, flange, or similar 
disconnect device shall be provided in each pump 
discharge line. All submersible pumps shall be 
provided with a corrosion-resistant rope or chain 
attached to each pump enabling pump removal from 
the ground surface without requiring dewatering or 
entrance into the tank. Valves shall also be readily 
accessible from the ground surface. 

(4) Antisiphon holes (three-sixteenth inch) shall be 
provided when the discharge or invert elevation of the 
distribution system is below the high-water alarm 
elevation in the pump tank, or in accordance with 
pump manufacturer's specifications. Check valves 
shall be provided when the volume of the supply line 
is greater than 25 percent of the dosing volume, or in 
accordance with pump manufacturer's specifications. 
When provided, the antisiphon hole shall be located 
between the pump and the check valve. 

(5) Sealed mercury control floats or similar devices 
designed for detecting liquid levels in septic tank 
effluent shall be provided to control pump cycles. A 
separate level sensing device shall be provided to 
activate the high-water alarm. Pump-off level shall be 
set to keep the pump submerged at all times or in 
accordance with the manufacturer's specifications. A 
minimum of 12 inches of effluent shall be maintained 
in the bottom of the pump tank. The high-water alarm 
float shall be set to activate within six inches of the 
pump-on level. The lag pump float switch, where 
provided, shall be located at or above the high-water 
alarm activation level. 

(6) Pump and control circuits shall be provided with 
manual circuit disconnects within a watertight, 
corrosion-resistant, outside enclosure (NEMA 4X or 
equivalent) adjacent to the pump tank, securely 
mounted at least 12 inches above the fmished grade. 
The pump(s) shall be manually operable without 
requiring the use of special tools or entrance into the 
tank for testing purposes. Conductors shall be 
conveyed to the disconnect enclosure through 
waterproof, gasproof, and corrosion-resistant 
conduits, with no splices or junction boxes provided 
inside the tank. Wire grips, duct seal, or other 
suitable material shall be used to seal around wire and 
wire conduit openings inside the pump tank and 
disconnect enclosure. 

(7) For systems requiring duplex and multiplex pumps, a 
confrol panel shall be provided which shall include 
short-circuit protection for each pump and for the 
control system, independent disconnects, automatic 
pump sequencer, hand-off-automatic (H-O-A) 
switches, run lights, and elapsed time counters for 
each pump. Alarm circuits shall be supplied ahead of 
any pump overload or short circuit protective devices. 
The control panel must be in a watertight, 
corrosion-resistant enclosure (NEMA 4X or 



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December 15, 1998 



981 



TEMPORAR Y R ULES 



equivalent) unless installed within a weathertight 
building. The panel shall be protected from intense 
solar heating. 

(8) Dual and multiple fields shall be independently dosed 
by separate pumps which shall automatically alternate. 
The supply lines shall be "H" connected to permit 
manual alternation between fields dosed by each 
pump. "H" connection valving shall be readily 
accessible from the ground surface, either from the 
pump tank access manhole or in a separate valve 
chamber outside the pump tank. Other equivalent 
methods of dosing dual or multiple fields may be 
approved by the State. 

(9) The pump tank shall have a properly functioning 
high-water alarm. The alarm circuit shall be supplied 
ahead of any pump overload and short circuit 
protective devices. The alarm shall be audible and 
visible by system users and weatherproof if installed 
outdoors in an enclosure (NEMA 4X or equivalent). 

(d) Siphons and siphon dosing tanks may be used when at 
least two feet of elevation drop can be maintained between the 
siphon outlet invert and the inlet invert in the nitrification field 
distribution system. 

( 1 ) Siphon dosing tanks shall be designed in accordance 
with the minimum dose requirements in this Rule and 
shall meet the construction requirements of this 
Section. The siphon dose tank shall provide at least 
12 inches of freeboard, and the inlet pipe shall be at 
least three inches above the siphon trip level. The 
high-water alarm shall be set to activate within two 
inches of the siphon trip level. 

(2) Siphon dosing tanks shall have a watertight access 
opening over each siphon with a minimum diameter 
of 24 inches and extending to finished grade and 
designed to prevent surface water inflow. 

(3) The slope and size of the siphon discharge line shall 
be sufficient to handle the peak siphon discharge by 
gravity' flow without the discharge line flowing full. 
Vents for the discharge lines shall be located outside 
of the dosing tank or otherwise designed to not serve 
as an overflow for the tank. 

(4) All siphon parts shall be installed in accordance with 
the manufacturer's specifications. All materials must 
be corrosion-resistant, of cast iron, high density 
plastic, fiberglass, stainless steel, or equal. 

(5) Siphon dosing tanks shall have a properly functioning 
high-water alarm that is audible and visible by system 
users and weatherproof if installed outdoors in an 
enclosure (NEMA 4X or equivalent). 

(e) Raw sewage lift stations shall meet the construction 
standards of this Section and all horizontal setback requirements 
for sewage treatment and disposal systems in accordance with 
Rule .1950(a) of this Section unless the station is a sealed, 
watertight chamber, in which case the setback requirements for 
collection sewers in Rule .1950(e) of this Section shall apply. 
Sealed, watertight chambers shall be of a single, prefabricated 
unit, such as fiberglass, with sealed top cover, and preformed 
inlet and outlet pipe openings connected with solvent w e ll s . 



welds. 0-ring seals, rubber boots, stainless steel straps, or 
equivalent. Dual pumps shall be provided for stations serving 
two or more buildings or for a facility with more than six water 
closets. Pumps shall be listed by Underwriter's Laboratories or 
an equivalent third party electrical testing and listing agency, and 
shall be grinder pumps or solids-handling pumps capable of 
handling at least three-inch spheres unless the station serves no 
more than a single water closet, lavatory, and shower, in which 
case two-inch solids handling pumps shall be acceptable. 
Minimum pump capacity shall be 2.5 times the average daily 
flow rate. The dosing volume shall be set so that the pump-off 
time does not exceed 30 minutes, except for stations serving 
single buildings, and pump run-time shall be from three to ten 
minutes at average flow. Pump station emergency storage 
capacity and total liquid capacity shall be determined in 
accordance with Paragraph (c)(1)(D) of this Rule except for a 
sealed, watertight chamber serving an individual building, in 
which case a minimum storage capacity of eight hours shall be 
required. All other applicable requirements for pump tanks and 
pump dosing systems in accordance with Paragraph (c) of this 
Rule shall also apply to raw sewage lift stations. 

History Note: Authohtv G.S. 130A-335 (e), (f). and (fl> [2nd]; 
Eff.Julyl 1982: 

Amended Eff. August 1. 1991: January 1. 1990: 
Temporarx' Amendment Eff. Januar\' 1^ 1999. 

.1953 PREFABRICATED SEPTIC TANKS AND 
PUMP TANKS 

When prefabricated concrete tanks or tanks of other material 
are used, they shall be constructed in accordance with the plans 
which have been approved by the State and shall comply with all 
requirements of this Section. At least three complete sets of 
plans and specifications for the initial design of the prefabricated 
septic tank or subsequent changes and modifications shall be 
submitted to the Department of Environm e nt, — H e alth, 
Environment and Natural Resources, Division of Environm e ntal 
H e alth, On-Site Wastewater Section, RO. Box 276 8 7, 29594, 
Raleigh, North Carolina 27611 76 8 7. 24626-0594. Separate 
plans and specifications for the design of each septic tank or 
pump tank to be produced shall be submitted to the Division of 
Environmental H e alth On-Site Wastewater Section for approval. 
These plans and specifications shall show the design of the 
septic tank in detail, including: 

( 1 ) All pertinent dimensions: 

(2) Reinforcement material and location; 

(3) Material strength: 

(4) Liquid depth: 

(5) Joint Pipe penetration, joint material and method of 
sealing: 

(6) Access manhole and ri se r d e tail: riser, lid, and other 
proposed appurtenances to the septic tank: 

(7) Approved effluent fllter(s), filter support detail and 
filter access detail: and 

(8)ffl Other design features. 

History Note: Authority G.S. 130A-335 (ej (f), and (fl) [2nd]; 
Eff. July 1. 1982: 



982 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



TEMPO RAR Y RULES 



Amended Effi January 1 , 1990: 

Temporary Amendment Eff. January J^ 1999. 

.1954 MINIMUM STANDARDS FOR PRECAST 
REINFORCED CONCRETE TANKS 

'i a) Thie following are minimum standards of design and 
construction of precast reinforced concrete septic tanks: 

(1) The minimum requirement for the liquid depth is 36 
inches. 

(2) A minimiun of nine inches freeboard is required, the 
freeboard being the air space between the top of the 
liquid and the bottom side of the lid or cap of the tank. 

(3) The length of the septic tank shall be at least twice as 
long as the width. 

(4) There shall be three inlet openings in the tank, one on 
the tank end and one on each sidewall of the inlet end 
of the tank. The blockouts for these openings shall 
leave a concrete thickness of not less than one inch in 
the tank wall. The blockouts shall be made for a 
minimum of four-inch pipe or a maximum of six-inch 
pipe. The outlet pipe penetration of the tank shall be 
through a resilient, watertight, sealed, non-corrosive 
and flexible connective sleeve. The outlet pipe 
penetration shall be precast to be compatible with the 
connective sleeve. No blockouts or openings No pipe 
penetration points or openings shall be permitted 
below the tank liquid level. 

(5) The inlet pipe in the tank shall be a straight pipe. 

(6) The outlet shall be through an approved effluent filter 
secured in place in an effluent Filter support case. The 
effluent filter support case shall serve as a functioning 
sanitary tee with the bottom inlet extending down 
between 25 and 40 percent of the liquid depth, a 
cast in plac e concr e t e — sanitary' t ee . — a pol>T < 'inyl 
chlorid e (PVC) sanitary' t ee . or a poly e thyl e n e (PE) 
sanitar> t e e. made of not l e ss than class 160 pip e or 
e quival e nt fittings and pipe. Class 160 pip e shall hav e 
a wall thiclmess of not less than 0.1 8 3 inches. The 
cast in place concr e te sanitar\' toe shall hav e a 
minimum thickness of not l o ss than tv i o inch e s. Th e 
t ee s hall e xt e nd down on e fourth of th e liquid d e pth. 
The tee approved effluent filter and support case shall 
be furnished by the septic tank manufacturer The 
invert of the outlet shall be at least two inches lower 
in elevation than the invert of the inlet. 

(7) Other equivalent methods of supporting the effluent 
filter and for making the pipe penetrations shall be 
approved by the On-Site Wastewater Section. 

£8} In order to obtain approval of an effluent filter, the 
filter manufacturer shall submit to the State the 
following information with supporting 
documentation: 

(A) For each septic tank system that is designed to 
treat 3000 gallons per day or less of sewage, a 
written certification that the effluent filter is 
designed, constructed, and performs in 
compliance with North Carolina General 
Statute 130A-335.1(a)(n(2)(3). and(4): 



(B) Sizing as to capacity and wastewater strength 
for all models of proposed filters to be 
approved; and 

(C) Specifications for application, installation, 
operation, and maintenance. 

(9)ffl All tanks shall be manufactured with a cast-in-place 
partirion so that the tank contains two compartments. 
The partition shall be located at a point not less than 
two-thirds nor more than three-fourths the length of 
the tank from the inlet end. The top of the partition 
shall terminate two inches below the bottom side of 
the tank top in order to leave space for air or gas 
passage between compartments. The top and bottom 
halves of the partition shall be cast in such manner as 
to leave a water passage slot four inches high for the 
full width of the tank. The partition (both halves) 
shall be reinforced by the placing of six-inch by 
six-inch No. 1 gage welded reinforcing wire. The 
reinforcing wire shall be bent to form an angle of 90 
degrees on the ends in order to form a leg not less 
than four inches long. When the wire is placed in the 
mold the four-inch legs should lay parallel with the 
sidewall wire and adjacent to it. It is recognized that 
there are other methods of constructing a partition or 
two-compartment tank. Any method other than the 
one described will be considered on an individual 
basis for approval by the Division of Environm e ntal 
H e alth. On-Site Wastewater Section. However, the 
tank wall thickness must remain not less than two and 
one-half inches thick throughout the tank except for 
blockouts. the pipe penetrations. 
(lO^ ffi Adequate access openings must be provided in the 
tank top. Access shall be provided for cleaning or 
rodding out of the inlet pipe, for cleaning or clearing 
the air or gas passage space above the partition, an 
e ntranc e for ins e rting th e suction hos e for tank 
pumping, and for e ntrance of a p e rson if int e rnal 
r e pairs ar e n ee d e d aft e r pumping, for pumping of 
each compartment, and for the maintenance of the 
effluent filter This shall be accomplished by properly 
locating two manholes or access openings with each 
having a minimum opening of 4^ 15 inches by 4* 15 
inches or \1_ inches in diameter as the opening cuts the 
plane of the bottom side of the top of the tank, tank 
or other equidimensional opening with at least 225 
square inches. The manhole covers shall be beveled 
on all sides in such manner as to accommodate a 
uniform load of 150 pounds per square foot without 
damage to the cover or the top of the tank. If the top 
of the tank is to be multislab construction, the slabs 
over the inlet of the tank, partition, and outlet of the 
tank must not weigh in excess of 1 50 pounds each. 
Multislab construction allows for the elimination of 
the manholes. Manhole covers, tank lids, access 
opening covers, or slabs shall have a handle of steel or 
other rot-resistant material equivalent in strength to a 
No. 3 reinforcing rod (rebar). 



NORTH CAROLINA REGISTER 




December 15, 1998 



983 
mmmsmt 



TEMPORAR Y R ULES 



(ID ffi The concrete tank and tank lid shall be reinforced by 
using a minimum reinforcing of six-inch by six-inch 
No. 10 gage welded steel reinforcing wire in the top. 
bottom ends, and sides of the tank. The reinforcing 
wire shall be lapped at least six inches. Concrete 
cover shall be required for all reinforcement. 
Reinforcement shall be placed to maximize the 
structural integrity of the tank. The tank tank, tank 
lid, riser and riser cover shall be able to withstand a 
uniform live loading of 150 pounds per square foot in 
addition to all loads to which an underground taHk 
tanks, riser, or riser cover is normally subjected, such 
as the dead weight of the concrete and soil cover, 
active soil pressure on tank walls, and the uplifting 
force of the ground water. Additional reinforcement 
shall be required when the loads on a concrete tank 
tank, riser, or riser cover are exceeded by subjecting 
it to vehicular traffic or when the top of the tank is 
placed deeper than three feet below the finished 
grade. 

(12) fl-&) The top. bottom, ends, and sides of the tank must have 
a minimum thickness of two and one-half inches. 

(13K -14-) A minimum 28-day concrete compressive strength of 
3.500 pounds per square inch shall be used in the 
construction of the septic tank. tank, concrete access 
riser and riser cover. The concrete shall achieve a 
minimum compressive strength of 3.000 pounds per 
square inch prior to removal of the tank from the 
place of manufacture. It shall be the responsibility of 
the manufacturer to certify that this condition has 
been met prior to shipment. A septic tank shall be 
subject to testing to ascertain the strength of the 
concrete prior to its being approved for installation. 
Recognized devices for testing the strength of 
concrete include a properly calibrated Schmidt 
Rebound Hammer or Windsor Probe Test. 
Accelerated curing in the mold by use of propane gas 
or other fuels is prohibited, except in accordance with 
accepted methods and upon prior approval of the 
State. 

(14 X 12) After curing, tanks manufactured in two sections and 
as required, concrete risers shall be joined and sealed 
at the joint by using a mastic, bufyl rubber, or other 
pliable sealant that is waterproof, corrosion-resistant, 
and approved for use in septic tanks. The sealant 
shall have a minimum size of one inch nominal 
diameter or equivalent. Before sealing, the joint shall 
be smooth, intact, and free of all deleterious 
substances. Tank halves shall be properly aligned to 
ensure a tight seal. The sealant shall be provided b> 
the manufacturer. 

(15X 4^ All tanks produced shall bear an imprint identifying 
the manufacturer, the serial number assigned to the 
manufacturer's plans and specifications approved b\ 
the State, and the liquid or working capacity of the 
tanks. This imprint shall be located to the right of the 
blockout made for the outlet pipe on the outlet end of 
the tank. All tanks shall also be permanently marked 



with the date of manufacture adjacent to the tank 
imprint or on the top of the tank directly above the 
imprint. 
(16) Risers and access covers shall have a clear opening 
sized to allow for maintenance and removal of 
internal devices of the septic tank and shall not allow 
accidental entry. The access cover and tank lid shall 
be designed, constructed, and maintained to prevent 
unauthorized access. Risers shall be sealed watertight 
where they join the top of the septic tank, and 
constructed to prevent water inflow through the lid or 
cover. 

(b) Pump tanks shall meet the construction requirements of 
Paragraph (a) of this Rule with the following modifications. 

(1 ) Tanks shall be cast with a single compartment, or, if 
a partition is provided, the partition shall be cast to 
contain a minimum of two four-inch diameter circular 
openings, or equivalent, located no more than 12 
inches above the tank bottom. 

(2) There shall be no requirement as to tank length, width, 
or shape, provided the tank satisfies all other 
requirements of this Section. 

(3) The invert of the inlet openings shall be located 
within 12 inches of the tank top. No freeboard shall 
be required in the pump tank. 

(4) After joining, tanks manufactured in two sections 
shall be plastered along the joint with hydraulic 
cement, cement mortar, or other waterproofing 
sealant. Other methods of waterproofing tanks may 
be used as specifically approved in the plans and 
specifications for the tank. Prior to backfilling, the 
local health department shall make a finding that a 
two section tank is watertight if a soil wetness 
condition is present within five feet of the elevation of 
the top of the tank. 

(5) Tanks shall be vented and accessible for routine 
maintenance. A watertight access manhole with 
removable lid shall be provided over the pump with a 
minimum diameter of 24 inches. The access manhole 
shall e.xtend at least to six inches above finished grade 
and be designed and maintained to prevent surface 
water inflow. Larger or multiple manholes shall be 
provided when two or more pumps are required. 
Pumps shall be removable without requiring entrance 
into the tank. Manhole lids and electrical controls 
shall be secured against unauthorized access. 
Manhole risers shall be joined to the tank top and 
sealed in accordance with Paragraphs (a)(12) and 
(b)(4) of this Rule. 

(6) All pump tanks shall bear an imprint identifying the 
manufacturer, pump tank serial number assigned by 
the Division of Environmental Health, and the liquid 
or working capacity of the tank. The imprint shall be 
located to the left of the outlet blockout. All tanks 
shall also be permanenth marked with the date of 
manufacture adjacent to the tank imprint or on the top 
of the tank directly above the imprint. 

(c) Plans for prefabricated tanks, tanks, risers and riser 



984 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



TEMPORAR Y R ULES 



covers, other than those approved under Paragraphs (a) or (b) of 
this Rule for precast reinforc e d concr e t e tanks, shall be approved 
on an individual basis as determined by the information 
fiimished by the designer which indicates the tank tank, riser or 
riser cover will provide equivalent effectiveness as those 
designed in accordance with the provisions of Paragraphs (a) 
and (b) of this Rule. 

(d) Tanks other than approved prefabricated tanks shall be 
constructed consistent with the provisions of this Rule except as 
follows: 

(i) Cast-in-place concrete septic and pump tanks shall 
have a minimum wall thickness of six inches. 

(2) Concrete block or brick masonry tanks shall have a 
minimum wall thickness of at least six inches when 
the design volume is less than 1,000 gallons and a 
minimum wall thickness of at least eight inches when 
the design volume is 1 ,000 gallons or more. All joints 
between masonry units shall be mortared using 
masonry cement mortar or equivalent. The joints shall 
have a nominal thickness of three-eighths inch. All 
concrete block masonry tanks shall have a minimum 
wall reinforcement of number three reinforcing bars 
on 20-inch centers, or equivalent. The maximum 
allowable reinforcement spacing in either direction 
shall be four feet. All block wall cores shall be filled 
with concrete with a minimum compressive strength 
of 3,000 pounds per square inch. All tanks 
constructed of block or brick shall be plastered on the 
inside with a 1 :3 mix (one part cement, three parts 
sand) of Portland cement at least three-eighths inch 
thick or the equivalent using other approved 
waterproofing material. 

(3) The bottom of the built-in-place tank shall be poured 
concrete with a minimum thickness of four inches. 
All built-in-place tanks shall be reinforced to satisfy 
the structural strength requirements of Paragraph 
(a)(9) of this Rule. Reinforcement shall be placed in 
both directions throughout the entire tank, including 
top, bottom, walls, and ends. 

(e) Manufacturers of septic tanks, effluent filters, pump tanks, 
risers, and riser locators shall comply with the General Statutes, 
this Section, and Approval conditions. If the approved products 
or materials are found to be in non-compliance, the Operation 
Permit shall not be issued or shall be denied. The State shall 
suspend or revoke the product approval upon a fmding that the 



information submitted is falsified, the product has been 
subsequently altered, or subsequent experience with the product 
results in altered conclusions about its design or performance. 
Suspension or revocation of the product approval shall not affect 
systems previously installed pursuant to the approval. 

History Note: Authority G.S. I30A-335 (e), (j), and (fl) [2nd]; 
Eff.Julyl. 1982; 

Amended Eff. August 1, 1991; January 1, 1990; 
Temporary Amendment Eff. January 1, 1999. 

.1955 DESIGN CRITERIA FOR CONVENTIONAL 
SEWAGE SYSTEMS 

(a) Conventional septic tank systems shall utilize a septic tank 
of approved construction with an approved effluent filter and 
supp ort case, access devices, and design volume which provides 
primary treatment of the sewage in accordance with the 
provisions of these Rules. The effluent filter support case shall 
be solvent welded to a PVC Schedule 40 outlet pipe with a 
minimum diameter of three inches inserted through the outlet 
connective sleeve creating a watertight and mechanically sound 
joint and shall extend at least 24 inches beyond the tank outlet. 
The filter and support case shall be installed and maintained in 
accordance with the filter manufacturer's specifications. The 
effluent filter shall be accessible without the operator entering 
the septic tank and removable by hand. The effluent filter shall 
be secured in the support case and located under the outlet 
access opening or manhole. When the top of the septic tank or 
access manhole is installed below finished grade, the location of 
each access opening or manhole shall be visibly marked at 
finished grade. The visible marker(s) shall be located over or 
within a five foot radius of each access opening or manhole. 
The markers) shall be identified as a septic tank locator. When 
not placed over each access opening or manhole, the marker(s) 
shall indicate location of tank access opening(s) or manhole(s). 
The filtered eflfluent from the septic tank shall be conveyed to an 
approved nitrification line where the soil provides for final 
treatment and disposal of the sewage. 

(b) Table 11 shall be used in determining the maximum 
long-term acceptance rate for septic tank systems of 
conventional trench design. The long-term acceptance rate shall 
be based on the most hydraulically limiting naturally occurring 
soil horizon within three feet of the ground surface or to a depth 
of one foot below trench bottom, whichever is deeper. 



TABLE II 



SOIL GROUP 



SOIL TEXTURE CLASSES 
(USDA CLASSIFICATION) 



LONG-TERM 
ACCEPTANCE RATE 

gpd/ft- 



Sands 

(With S or PS 
structure and 
clay mineralogy) 



Sand 
Loamy Sand 



1.2-0.8 



II 



Coarse Loams 



Sandy Loam 



0.8-0.6 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



985 



H 



TEMPOIL4R Y RULES 



IV 



(With S or PS 


Loam 


structure and 




clay mineralogy) 




Fine Loams 


Sandv Clav Loam 


(With S or PS 


Silt Loam 


structure and 


Clay Loam 


clay mineralogy) 


Siltv Clav Loam 




Sih 


Clavs 


Sandy Clay 


(With S or PS 


Silt>- Clay 


structure and 


Clay 


clay mineralogy) 





0.6-0.3 



0.4-0. 



The long-term acceptance rate shall not exceed the mean rate for 
the applicable soil group for food service facilities, meat 
markets, and other places of business where accumulation of 
grease can cause premature failure of a soil absorption system. 
Long-term acceptance rates up to the maximum for the 
applicable soil group may be permitted for facilities where data 
from comparable facilities indicates that the grease and oil 
content of the effluent will be less than 30 mg/l and the chemical 
oxygen demand (COD) will be less than 500 mg/l. 

(c) The design daily sewage flow shall be divided by the 
long-term acceptance rate to determine the minimum area of 
nitrification trench bottom. The total length of the nitrification 
line shall be determined by dividing the required area of 
nitrification trench bottom by the trench width, not to exceed 36 
inches. Trenches shall be located not less than three times the 
trench width on centers with a minimum spacing of five feet on 
centers. 

(d) The local health department may permit the use of a bed 
system on sites where the soil texture can be classified into 
either Soil Groups 1. 11. or 111. meeting the other requirements of 
this Section, and onl> on lots which are limited by topograph), 
space, or other site-planning considerations. In such cases, the 
number of square feet of bottom area needed shall be increased 
b\ 50 percent over what would be required for a trench system. 
Nitrification lines shall be at least 1 8 inches from the side of the 
bed and shall have lines on three-foot centers. When the design 
daily flow exceeds 600 gallons per da\. bed systems shall not be 
used. 

(e) The pipe or tubing used between the septic tank and the 
nitrification line shall be a minimum of three-inch nominal size 
Schedule 40 polyvinyl chloride (PVC), polyethylene (PE), or 
acrvlonitrile-butadiene-styrene (ABS) or equivalent with a 
minimum fall of one-eighth inch per foot. Howe\er. three-inch 
or greater nonperforated polyethylene (PE) corrugated tubing 
ma}.- be substituted for Schedule 40 pipe bet\\een a distribution 
device and the nitrification line if the following conditions are 
met; 

( 1 ) the trench has a minimum bottom width of one foot; 

(2) the trench bed is compacted, smooth, and at a uniform 
grade: 

(3) the pipe is placed in the middle of the trench with a 
minimum of three inches of clearance benveen the 
pipe and the trench walls; 



(4) washed stone or washed gravel envelope is placed in 
the trench on both sides of the pipe and up to a point 
at least two inches above the top of the pipe; 

(5) a minimum of six inches of soil cover is placed and 
compacted over the stone or gravel envelope; and 

(6) earthen dams consisting of two feet of undisturbed or 
compacted soil are placed at both ends of the trench 
separating the trench from the distribution device and 
the nitrification line. 

All joints from the septic tank to the nitrification line shall be 
watertight. 

(f) When four or six-inch diameter corrugated plastic tubing 
is used for nitrification lines, it shall be certified as complying 
with ASTM F 405. Standard Specification for Corrugated 
Polyethylene (PE) Tubing and Fittings, which is hereby adopted 
by reference in accordance with G.S. 150B M(c). G.S. 150B- 
21.6. The corrugated tubing shall have three rows of holes, each 
hole between one-half inch and three-fourths inch in diameter, 
and spaced longitudinally approximately four inches on centers. 
The rows of holes may be equally spaced 120 degrees on centers 
around the peripherv. or three rows may be located in the lower 
portion of the tubing, the outside rows being approximately on 
120-degree centers. The holes may be located in the same 
corrugation or staggered in adjacent corrugations. Other types 
of pipe may be used for nitrification lines provided the pipe 
satisfies the requirements of this Section for hole size and 
spacing and the pipe has a stiflriess equivalent to corrugated 
polyethylene tubing (ASTM F-405) or stronger. The 
nitrification line shall be located in the center of the nitrification 
trench. 

(g) Nitrification trenches shall be constructed as level as 
possible but in no case shall the fall in a single trench bottom 
exceed one-fourth inch in 1 feet as determined by an engineer's 
level or equivalent. When surface slopes are greater than two 
percent, the bottom of the nitrification trenches shall follow the 
contour of the ground. An engineer's level or equivalent shall be 
used for installation and inspection. The nitrification trench 
shall not exceed a width of three feet and a depth of three feet. 
except as approved b> the local health department. 

(h) Rock used in soil absorption systems shall be clean, 
washed gravel or crushed stone and graded or sized in 
accordance with size numbers 3. 4. 5. 57. or 6 of ASTM D-448 
(standard sizes of coarse aggregate) which is hereby adopted by 



986 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



TEMPORAR Y RULES 



reference in accordance with G.S. 150B H(c). G.S. 150B-21.6. 
Copies may be inspected in, and copies obtained from the 
Division of Environmental Health, P.O. Box 27687, Raleigh, 
North Carolina 27611-7687. The rock shall be placed a 
minimum of one foot deep with at least six inches below the pipe 
and two inches over the pipe and distributed uniformly across 
the trench bottom and over the pipe. 

(i) The soil cover over the nitrification field shall be to a 
depth of at least six inches. The finished grade over the 
nitrification field shall be landscaped to prevent the ponding of 
surface water and runoff of surface water shall be diverted away 
fi-om the nitrification field. Soil cover above the original grade 
shall be placed at a uniform depth over the entire nitrification 
field, except as required to prevent the ponding of surface water, 
and shall extend laterally five feet beyond the nitrification 
trench. The soil cover shall be placed over a nitrification field 
only after proper preparation of the original ground surface. The 
type of soil cover and placement shall be approved by the local 
health department. 

(j) Effluent distribution devices, including distribution boxes, 
fiow dividers, and flow diversion devices, shall be of sound 



construction, watertight, not subject to excessive corrosion, and 
of adequate design as approved by the local health department. 
Effluent distribution devices shall be separated fi-om the septic 
tank and nitrification lines by a minimum of two feet of 
undisturbed or compacted soil and shall be placed level on a 
solid foundation of soil or concrete to prevent differential 
settlement of the device. The installer shall demonstrate that the 
distribution devices perform as designed. 

(k) Grease traps or grease interceptors shall be required at 
food service facilities, meat markets, and other places of 
business where the accumulation of grease can cause premature 
failure of a soil absorption system. The following design criteria 
shall be met: 

( 1 ) The grease trap shall be plumbed to receive all wastes 
associated with food handling and no toilet wastes; 

(2) The grease trap liquid capacity shall be sufficient to 
provide for at least five gallons of storage per meal 
served per day, or at least two-thirds of the required 
septic tank liquid capacity, or a capacity as determined 
in accordance with the following: 



LC = DxGLxSTxHRy2xLF 



where 



LC 

D 

GL 

ST 

HR 

LF 



= grease trap liquid capacity (gallons) 

= number of seats in dining area 

= gallons of wastewater per meal (1.5 single-service; 2.5 full service) 



= storage capacit>' factor 
= number of hours open 
= loading factor 



= 2.5 

= (1.25 interstate highway 

1 .0 other highways and recreational areas 

0.8 secondary roads) 



(3) Two or more chambers must be provided, with total 
length-to-width ratio at least 2:1. Chamber opening 
and outlet sanitary tee must extend dovMi at least 50 
percent of the liquid depth. 

(4) Access manholes, with a minimum diameter of 24 
inches, shall be provided over each chamber and 
sanitary tee. The access manholes shall extend at 
least to finished grade and be designed and 
maintained to prevent surface water infiltration. The 
manholes shall also have readily removable covers to 
facilitate insp e ction inspection, filter maintenance. 
and grease removal. 

(5) One tank or multiple tanks, in series, shall be 
constructed in accordance with Rules .1952. .1953. 
and .1954 of this Section, and the provisions of 
Paragraphs (k)(3) and (k)(4) of this Rule. 

(6) Where it has been demonstrated that specially 
designed grease interceptors will provide improved 
performance, the grease trap liquid capacity may be 
reduced by up to 50 percent. 

(1) Stepdowns or drop boxes may be used where it is 
determined by the local health department that topography 
prohibits the placement of nitrification trenches on level grade. 
Stepdowns shall be constructed of two linear feet of undisturbed 
soil and constructed to a height which fully utilizes the upstream 



nitrification trench. Effluent shall be conveyed over the 
stepdown through nonperforated pipe or tubing and backfilled 
with compacted soil. Drop boxes shall be constructed so that the 
invert of the inlet supply pipe is one inch above the invert of the 
outlet supply pipe which is connected to the next lower drop 
box. The top of the trench outlet laterals, which allow effluent 
to move to the nitrification lines, shall be two inches below the 
invert of the outlet supply line. Area taken up by stepdowns and 
drop boxes shall not be included as part of the minimum area 
required for nitrification trench bottoms. 

(m) Nitrification trenches shall be installed with at least one 
foot of naturally occurring soil between the trench bottom and 
saprolite, rock, or any soil horizon unsuitable as to structure, 
clay mineralogy or wemess. If the separation between the 
bottom of the nitrification trench and any soil wetness condition 
is less than 18 inches, and if more than six inches of this 
separation consists of Group 1 soils, a low pressure pipe system 
shall be required. 

(n) If sewage effluent pumps are used, the applicable 
requirements of Rule .1952 of this Section shall apply. 

(o) Collection sewers shall be designed and constructed in 
accordance with the following minimum criteria: 

(1) Building drains and building sewers shall be in 
accordance with the state plumbing code and 
approved by the local building inspector. 



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(2) Pipe material shall be specified to comply with the 
applicable ASTM standards, with methods of joining 
and other special installation procedures specified 
which are appropriate for the pipe to be used. 

(3) Gravity sewers shall be designed to maintain scour 
velocities of at least Uvo feet per second with the pipe 
half full and a minimum of one foot per second at the 
peak projected instantaneous flow rate. Force mains 
shall be sized to obtain at least a two-foot per second 
scour velocitv at the projected pump operating flow- 
rate. 

(4) Infiltration and exfiltration shall not exceed 100 
gallons per day per inch diameter per mile of gravity 
sewer pipe or 20 gallons per day per inch diameter per 
mile of pressure pipe in force mains and suppK lines. 

(5) Three-foot minimum cover shall be provided for all 
sewers unless ferrous material pipe is specified. 
Ferrous material pipe or other pipe with proper 
bedding to develop design-supporting strength shall 
be provided where sewers are subject to 
traffic-bearing loads. 

(6) Manholes shall be used for sewers at an\ bends, 
junctions, and at least even, 425 feet along the sewer 
lines. Drop manholes are required where the inlet to 
outlet elevation difference exceeds 2.5 feet. Manhole 
lids shall be watertight if located below the lOO-sear 
flood elevation, within 100 feet of an\' public water 
suppK source, or within 50 feet of an> pri\ate water 
suppK source or any surface waters classified WS-I. 
WS-li. WS-III. SA.'SB. orB. 

(7) Cleanouts may be used instead of manholes for 
four-inch and six-inch sewers ser\ing one or two 
buildings or as otherwise allowed by the North 
Carolina Plumbing Code. When used, cleanouts are 
required at least even. 50 feet for four-inch sewers 
and e\er\ 100 feet for six-inch sewers and at all 
junctions and bends which exceed 45 degrees. 

(8) Additional ventilation provisions ma\ be required for 
collection sewers. Air relief valves shall be pro\ided 
as needed for force mains. 

(p) Alternating dual field nitrification sn stems ma> be utilized 
where soils are limited b> high clogging potentials (Soil Groups 
III and IV) and where the potential for malfunction and need for 
immediate repair is required. Alternating dual nitrification fields 
shall be designed with two complete nitrification fields, each 
sized a minimum of 75 percent of the total area required for a 
single field and separated b\ an efiluent fiow diversion \al\e. 
The diversion \al\'e shall be constructed to resist 500 pounds 
crushing strength. structuralK sound, and shall be resistant to 
corrosion. Valves placed below ground level shall be pro\ ided 
with a valve box and suitable valve stem so that thes may be 
operated from the ground surface. 

History Note: Authority G.S. 130.4-335 lei(fi. and (fl) [2nd]: 

Eff. July 1. 1982: 

Amended Eff. August 1. 1991: Janua>y 1. 1990: August 1. 1988: 

February 1. 198~: 

Temporary' Amendment Eff. Jamiar\- _f 1999. 



*****A*AAt>c 



Rule-making Agency: 

Commission 



Well Contractors Certification 



Rule Citation: 15A NCAC 2" .0100. .0201, .0301. .0401. 
.0410. .0420. .0430. .0440. .0501, .0510. .0520, .0601. .0701, 
.0801. .0810. .0820, .0830, .0840, .0901, .0910, .0920, .0930 

Effective Date: December 15. 1998 

Findings Reviewed and Approved by: Julian Mann, III 

Authority for the rule-making: G.S. 8^-94: 8''-98.2: 8^-98.4: 
8-^-98.5: '8'-98.6: 8'-98.-: 8--98.8: 87-98.9: 8'-98.12: 143B- 
300: 143B-301.il: 150B-3: 150B-38: 150B-40: 150B-43 

Reason for Proposed Action: To establish certification 
procedures and requirements for well contractor certification 
pursuant to Session Lcnv 199'-358 and Senate Bill 1269 
(Session Lom' 1998-129). The intent of these rules is to provide 
the Hell Contractors Certification Commission with the 
procedures and standards whereby it can determine the 
qualifications of persons who engage in well contractor 
activities. This rulemaking is also intended to provide well 
contractors with a legal means of operating or continuing to 
operate the business of well construction while at the same time 
protecting consumers from persons who are not qualified to 
construct wells. .4 water well is a major expense to landowners, 
businesses, single family residences, and renters. Proper 
construction of water wells is vital to securing a clean water 
supply To this end providing a framework, by which well 
contractors can demonstrate to the Commission that they have 
the knowledge, skills, and abilities to construct wells in 
accordance with the Well Construction Standards in Title 15.4 
.\C.4C 2C ser\-es the public interest. Section 10 of Session Law 
199~-0358 gi\'es the Well Contractors Certification Commission 
the authority to adopt temporary rules. It is important to note 
that Section 2 of Senate Bill 1269 (Session Law 1998-129) 
extends the authority that the Well Contractors Certification 
Commission has to conduct Temporary Rulemaking to Julv 1, 
1999. 

Comment Procedures: Comments, data, statements and other 
information may be submitted in writing within 60 days of the 
publication of this issue of the North Carolina Register Written 
comments may be submitted to Da\-id Hance at ENR-DWQ- 
Groundwater Section. P.O. Box 29 5" 8, Raleigh, North 
Carolina. 2'626-05~8. {Phone: (919> '15-6189: Fax: (919) 
"15-0588}. Comments will be accepted by the Commission 
through February 15, 1998. 

CHAPTER 27 - WELL CONTRACTOR 
CERTIFICATION RULES 

SECTION .0100 - DUTIES AND DEFINITIONS 



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.0101 DUTIES OF A CERTIFIED WELL 
CONTRACTOR 

(a) A Certified well contractor must be present at all times 
when well contractor activities are being conducted. 

■ b) Every certified well contractor shall meet the continuing 
education requirements of this Chapter for professional 
development as a condition for certification renewal. 

(c) A person who has satisfactorily met the requirements of 
the Commission relating to well contractor activities is entitled 
to recognition as a Certified Well Contractor certified to practice 
as a well contractor in the State of North Carolina. 

(1) Each well contractor shall be assigned a permanent 
certification number and shall be issued a certificate 
with that certification number Certification numbers 
are not transferable and shall not be used by another 
well contractor. 

(2) The certification number shall be carried by the well 
contractor on a card issued by the Coinmission at all 
times when performing well contractor activities. 

History Note: Authority G.S. 87-98.2; 87-98.4; 87-98.12; 

143B-301.il; 

Temporary Adoption Eff. December 15, 1998. 

.0110 DEFINITIONS 

(a) "Commission" means the Well Contractors Certification 
Commission as established by the North Carolina General 
Assembly. 

(b) "College course" means a semester unit or quarter hour 
unit of instruction given at a college or university, which is 
relevant to well contractor activities. 

(c) "Course/activity" means any course or activity with a clear 
purpose and objective which will maintain, improve or expand 
skills and knowledge relevant to the practice of well contractor 
activities. 

(d) "Department" means the Department of Environment and 
Natural Resources. 



(e) "Personally manage" means giving directions to the on-site 
person who is personally supervising well contractor activities. 

(0 "Personally supervise" means the on-site direction and 
control of aU well contractor activities at any time those 
activities are being conducted. 

(g) "Professional development hour" or "PDH" means a 
nominal contact hour of instruction or presentation that is the 
basic unit of credit for all courses or activities related to 
satisfying continuing education requirements. 

(h) "Secretary" means the Secretary of the Department of 
Environment and Natural Resources. 

(i) "Sponsor" means an organization or individual approved by 
the Commission, after having supplied information, on a form 
prescribed and furnished by the Commission, with respect to the 
organization's or individual's ability to provide instruction for 
courses or activities related to well contractor activities. 

(i) "Well contractor" means a person in trade or business who 
undertakes to personally supervise or personally manage the 
performance of a well contractor activity on the person's behalf 
or for any person, firm or corporation. 

(k) "Well contractor activity" means the construction. 



installation, repair, alteration or abandonment of any well. 

History Note: Authority G.S. 87-98.2; 87.98.12; 143B- 

301.11; 

Temporary Adoption Eff. December 15, 1998. 

SECTION .0200 - WELL CONTRACTOR FEES 

.0201 SCHEDULE OF CERTIFICATION FEES 

(a) The following fees are required for well contractor 
certification applications, renewals and temporary certifications: 

tU Annual Fee: A fee of two hundred dollars ($200.00) 
shall accompany each new a pplication for 
certification or renewal of certification. 

(2} Examination Fee: A fee of fifty dollars ($50.00) shall 
accompany each request for examination. Where an 
applicant requests an examination to be administered 
at a time other than a regularly scheduled 
examination, the fee will be one hundred dollars 
($100.00). 

(3) Temporary Certification: A fee of one hundred 
dollars ($100.00) shall accompany each application 
for temporary certification. 

(b) Regular employees of a political subdivision or 
governmental entity engaged in well contractor activity shall be 
certified in accordance with this Chapter, but shall be exempt 
from paying the annual fees required in this Chapter, for the well 
contractor activity done for the political subdivision or 
government entity. 

History Note: A uthority G. S. 8 7-98. 9; 
Temporary Adoption Eff. December 15, 1998. 

SECTION .0300 - CERTIFICATION OF WELL 
CONTRACTORS 

.0301 APPLICATION REQUIREMENTS 
FOR CERTIFICATION 

(a) The Commission shall accept applications and renewal 
requests for certification as a well contractor from any person 
who is at least J_8 years of age, has knowledge of those rules 
adopted by the Environmental Management Commission which 
deal with the regulation of wells, has had not less than two years 
experience in well contractor activities and whose application 
meets all the following conditions: 

(1) Each application shall be submitted on forms provided 
by the Commission, which are designed for requesting 
certification as a well contractor by way of 
examination, certification without examination, or 
temporary certification and must be properly and 
accurately completed and submitted with an 
appropriate fee to the office of the chairman of the 
Commission. 

(2) Each application has been determined as complete- 
Incomplete applications and applications not 
accompanied by an appropriate fee and attachments 
cannot be processed and will be returned to the 



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applicant. 

(3) Each application shall contain proof of experience as 
provided in Paragraph (e) of this Rule. 

(4) Each application shall include a request for the well 
contractor examination or include documentation that 
the applicant meets the requirement for certification 
without examination as provided in Section .0500 of 
this Chapter. 

(5) Applicants who have intentionally supplied false 
information must wait 1 2 months before resubmitting 
an application for certification. 

(bj The Commission shall not schedule an applicant to take 
the required examination until his application has been reviewed 
and the applicant has met all other conditions for certification. 
The applicant must pass the examination within three attempts 
or within a one year period of time after application submittal or 
a new application shall be required. An applicant who has failed 
the examination after three consecutive attempts shall be 
required to obtain eight PDH units prior to resubmittal of an 
application for certification. 

(c) A certification shall not be issued until the applicant 
successfully passes the required examination or meets the 
requirements for certification without examination. 

(d) A certification issued bv the Commission shall be valid in 
every counts in the state. 

(e) Satisfactory proof of two years experience jn well 
contractor activities shall be demonstrated bv providing one of 
the following: 

(1) A Hst of at least 25 wells, together with their 
locations, major use and approximate depth and 
diameter, for which the applicant has supervised or 
assisted jn the construction, repair or abandonment 
process. This list shall provide the name and address 
of the owner or owners of each well, and the 
approximate date the construction of each well was 
completed. A cop\ of the completion report for each 
well shall accompany the list. Completion dates of 
the 25 wells shall be distributed over a consecutive 24 
month period. 

(2) Letters from three persons in a business related to 
well contractor activities attesting that the applicant 
has been working jn a well contractor activity for a 
minimum of 24 months. 

(3) A letter from at least one currentK' certified well 
contractor attesting that the applicant has been 
working in a well contractor acti\ in for a minimum of 
24 months. 

(4) In lieu of the methods described in this Paragraph (e) 
of this Rule, satisfactory proof of equivalent 
experience may be presented to the Commission and 
may be accepted on an individual basis. 

History- Xote: Authority G.S. 8^-98.6: 8'-98.9: 143B-301. 11: 
Temporary Adoption Eff. December 15. 1998. 

SECTION .0400 - CERTIFICATION BY 
EXAMINATION 



.0401 SUBMITTAL AND PROCESSING OF 

APPLICATIONS FOR EXAMINATIONS 

(a) An application being filed for examination shall be 
postmarked by the United States Postal Service, or otherwise 
received bv the Commission, at least 30 days prior to the date 
upon which the examination is scheduled to be administered and 
the appropriate fee must accompany the application. 

(b) Upon receipt of the application by the Commission, the 
application will be reviewed by the designee(s) of the 
Commission for eligibility to take the examination. The 
applicant will be notified of their eligibility by letter and will be 
advised of the date, time and place of the examination. A receipt 
for the examination fee will accompany the letter. In cases 
where the applicant is ineligible for examination, the applicant 
will also be notified by letter and advised of the reason for 
ineligibilits'. The examination fee will be refunded in the event 
that the applicant is determined to be ineligible for the 
examination, minus a 50 percent processing fee. Upon learning 
of ineligibility, the applicant may' request a hearing before the 
Commission at the next regularly scheduled meeting, relative to 
the ineligibility, if the applicant so desires. Such requests must 
be in yvriting and shall be submitted at least 30 days prior to the 
next regularly scheduled meeting. Any applicant who 
intentionalh supplies false information on the application for 
certification for the purpose of gaining eligibility, will be 
ineligible for the examination and wiU forfeit the examination 
fee. 

Histoty Note: Authority G.S. 87-98.6: 87-98.9 143B-301. 11: 
Temporar\' .idoption Eff. December 15, 1998. 

.0410 WELL CONTRACTOR EXAMINATIONS 

(a) Well contractor examinations shall be yvritten. 
comprehensive examinations that are standardized statewide. 
The Commission may administer an examination orally on ^ 
individual basis upon a shoyving by the applicant of the existence 
of exceptional circumstances. The examinations shall be 
designed to determine the applicant's: knowledge of applicable 
rules: ability to construct, repair and abandon a well: and the 
ability to supervise, direct, manage and control the conttacting 
activities of the yvell contracting business. 

(b) A grade on the examination of 70 percent or more shall be 
passing. Results of the examination shall be reported as either 
passing or failing. 

Histoty Note: Authority^ G.S. 87-98.6: 143B-301. 11; 
Tempora/T .Adoption Eff. December 15, 1998. 

0420 TIME AND PLACE OF EXAMINATION 

The Commission or rts representatives shall conduct 
examinations for certification at the time and place hereinafter 
designated: 

(1) An examination yvill be given at least tyvice a vear. 
The date, time and place of examination yvill be 
determined by the Commission. Information 
regarding the date, time, and place will be made 
available upon request. Announcements of the 
examination yvill be distributed as deemed appropriate 



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by the Commission. Each applicant filing for 
examination will be notified in writing of the date, 
time and place of the examination and the required 
grade for passing the examination. 

(2) Examinations may be given by the Commission at any 
time or place: 

(a) when a sufficient number of applications have 
been filed to justify an examination, as 
determined by the Commission; or 

Co) upon a showing by aQ applicant of the 
existence of exceptional circumstances. 

(3) Each applicant filing for examination will be notified 
in writing of the date, time and place of the 
examination and the required grade for passing the 
examination. 

History Note: Authority G.S. 1438-301. 11: 87-98. 6: 
Temporan' Adoption Eff. December 15. 1998. 

.0430 CONDUCTING AND GRADING 
EXAMINATIONS 

(a) Examinations, prepared by members of the Commission 
or its authorized representatives and approved by the 
Commission, will be given only to those who, after filing a 
proper application, have been determined to be eligible. 
Examinations will be conducted and graded under the 
supervision of a representative of the Commission, or its 
authorized representatives. Assistance m conducting and 
grading the examinations may be sought from members of the 
Department and other appropriate persons with the approval of 
the Commission. When each applicant receives his examination. 
he will identify himself by way of his driver's license or other 
form of photographic identification satisfactory to the proctor 
and the identification number will be recorded on the face of the 
examination paper. 

(b) Representatives of the Commission or other authorized 
representatives, who are supervising the examinations may take 
appropriate action against applicants, including dismissal from 
the examination, if cheating does occur. If the applicant holds 
a certificate already, the Commission may revoke the 
certification in accordance with G.S. 87-98.8 and ISA NCAC 
27 . 0901 for cheating on an examination. 

History Note: Authority G.S. 87-98.6: 87-98.8: 143B-301. 11: 
Temporary- Adoption Eff. December 15. 1998. 



{b} Under normal circumstances, neither the examination 
grade nor the examination paper of any applicant will be made 
available to anyone other than the members of the Commission 
and those a pproved persons who assist in conducting and 
grading the examinations. The examination papers will be held 
by the Commission in a secure location for a period of six 
months following notification to the applicant. Questions by the 
applicant concerning the examination must be made in writing 
to the Commission within that period. An applicant who fails to 
pass an examination shall be entitled to and notified of the 
privilege to review his examination in the presence of one or 
more Commission members or its authorized representative in 
Raleigh, or at another location approved by the Commission. 

History Note: Authority G.S. 87-98.6: 87-98.8; 143B-301. 11; 
Temporan' Adoption Eff. December 15, 1998. 

SECTION .0500 - CERTIFICATION WITHOUT 
EXAMINATION 

.0501 CERTIFICATION BY LEGISLATIVE 
EXEMPTION 

(a) Unless an applicant is found to have engaged in an act that 
would constitute grounds for disciplinary action, the 
Commission shall issue a certificate without examination to any 
person who since July i, 1992 has been actively and 



continuously engaged in well contractor activity, and: 

(1) Has been continuously registered with the 
Department; or 

(2) Employed by a firm or corporation that has been 
continuously registered with the Department. 

£bj To obtain certification under this Section, a person must 
submit an application to the Commission and pay the annual fee 
prior to January 1. 1999. 

(c) A well contractor who is certified under this Section must 
continuously maintain the certification in good standing in order 
to remain certified. 

(d) If a certificate issued under this Section is not renewed 
under G.S. 87-98.7. is suspended, or is revoked, the well 
contractor must apply for certification by examination in order 
to be recertified. 

History Note: Authority G.S. 87-98. 7; 143B-301. 11; Session 

Laws 1997. c. 358. s. 9: ' 

Temporary Adoption Eff. December 15, 1998. 



.0440 EXAMINATION RESULTS AND ISSUANCE 
OF CERTIFICATES 

(a) Within as short a period as feasible, after an examination. 
the applicant will be informed, m writing only, by the 
Commission or its authorized representatives as to the results of 
his examination. If a passing score is made, such notification 
constitutes certification by the Commission. After each 
examination, a list of those certified shall be drawn up and made 
a part of the permanent records of the Commission. Copies of 
these lists will be provided to each Commission member. Upon 
completion of the examination process, the applicant who passes 
the examination will be issued a certificate. 



.0510 RECIPROCAL WAIVER OF EXAMINATION 
FOR CERTIFICATION 

(a) The Commission may waive the examination requirement 
of this Chapter for an applicant who js licensed or holds a 
certification to practice well contractor activities in another State 
which also provides for equivalent reciprocal waiver of 
examination for licensing of certification to practice well 
construction activities m that state to North Carolina certified 
well contractors. 

(b) The Commission may grant a waiver of the examination 
requirement to an applicant who provides evidence satisfactory 
to the Commission that the applicant: 



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(1) Meets the requirements for Certification established 
by the Commission under this Chapter; and 

(2) Became hcensed or certified in the other State after 
passing in that state an examination that js equal or 
comparable to the examination for which the applicant 
is seeking the waiver. 

History Note: Authority G.S. 87-98.6: 87-98. 7; N3B-301. 11; 
Temporary- Adoption Eff. December 15, 1998. 

.0520 TEMPORARY CERTIFICATION 

(a) Temporary certification ma\' be granted to any applicant 
in accordance with the requirements of G.S. 87-98. 7(c). 

(b) An applicant for temporary certification shall be required 
to meet all the application criteria as outlined in 15A NCAC 27 
.0301(a). 



87-98.9. Notice shall be attempted by certified mail or personal 

service. 

History Note: Authority G.S. 87-98.6: 87-98.7: 143B-301.il: 
Temporar\' Adoption Eff. December 15, 1998. 

SECTION .0700 - TYPES OF CERTIFICATION 

.0701 ESTABLISHMENT OF TYPES OF 
CERTIFICATION 

The Commission shall establish types of certification as 
necessary to carry out the provisions of the Well Contractors 
Certification Act. 

History Note: Authorit}- G.S. 8^-98.5: 143B-301. 11: 
Temporar\' Adoption Eff. December 15, 1998. 



History Note: Authority G.S. 8:^-98. 6: 87-98. 7; 143B-301. 11; 
Temporary .Adoption Eff. December 15, 1998. 



SECTION .0800 - CONTINUING EDUCATION 
REQUIREMENTS 



SECTION .0600 - CERTIFICATION RENEWAL 

.0601 CONDITIONS AND LIMITATIONS FOR 
RENEWAL OF CERTIFICATIONS 

(a) Certification issued pursuant to this Rule shall not be 
transferable and shall expire on December 31 of each year 
through the \ear 2000. Certification shall expire on June 30. 
2001 and shall expire on June 30 of each year thereafter. A 
certification may be renewed without examination for ensuing 
years by making application to the Commission no later than the 
expiration date of the certification and paying the renewal fee. 
Receipt by the Commission of such application and the 
appropriate fee(s) shall extend the validity of the current 
certification until a new certification is received or the applicant 
is notified by the Commission that formal administrative action 
has been taken to suspend, revoke or deny renewal of the 
certification. 

(b) If a certification is not renewed in accordance with G.S. 



87-98.9. the certification shall become void and mav be renewed 
only in accordance with the requirements of G.S. 87-98. 7(b). 

(c) No application for a renewal shall be granted if the 
applicants certification is suspended or revoked until the period 
for such suspension or revocation has expired. 

(d) Individuals certified under this program shall immediateK 
notify the Well Contractors Certification Commission in writing 
of any change of their business or personal address. 

(e) The Commission shall notify the well contractor of 
nonpayment of the annual renewal fee in accordance with G.S. 



.0801 REQUIREMENTS 

Every certified well contractor is required to obtain eight 
Professional Development Hours (PDH) units during the 
renewal period. If a registrant exceeds the annual requirement 
in any renewal period, a maximum of eight PDH units may be 
carried forward into the subsequent renewal period. Selection 
of courses and activities which meet the requirements of 15A 
NCAC 27 .0820 of this Section is the responsibility of the 
certified well contractor. Certified well contractors have the 
option of selecting courses other than those offered by sponsors. 
Post evaluation of courses offered by other than sponsors as 
defined in 15A NCAC 27 .OllO(i) could result in non- 
acceptance. PDH units mav be earned as follows: 

(1) Completion of college courses. 

(2) Completion of continuing education courses. 

(3) Completion of correspondence, televised, videotaped, 
audiotapes, and other short courses/tutorials. 

(4) Presenting or attending seminars, in-house courses, 
workshops, or professional or technical presentations 
made at meetings, conventions or conferences. 

(5) Teaching or instructing in Items ( 1 ). (2). or (3) of this 
Rule. 

(6) Authoring published papers, articles, or books. 

(7) Active participation in professional or technical 
societies. 

History Note: Authority G.S. 8-'-98. 12: 143B-301. 11: 
Temporary- .Adoption Eff. December 15, 1998. 



.0810 UNITS 

The conversion of other units of credit to PDH units is as follows: 
(I) Completion of college courses 45 PDH 

Completion of continuing education courses 30 PDH 

Completion of correspondence, televised, videotaped, audiotapes, and other short courses/tutorials that 
provides a completion certification 1 PDH 

Presenting or attending seminars, in-house courses, workshops, or professional or technical presentations 
made at meetings, conventions or conferences 1 PDH 



i21 



14} 
15J 



For teaching in Items ( 1) - (4) of this Rule. PDH credits are doubled. Teaching credits are valid for teaching a course or 



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£6} 



seminar for the first time only. Teaching credit does not apply to fUll-time faculty, as defined by the institution where the 
course is being taught. 

Each published paper, article or book 10 PDH 

Active participation in professional and technical society (Each Organization) 2 PDH 



History Note: Authority G.S. 87-98.12; 1438-301.11; 

Temporan' Adoption Eff. December 15. 1998. 

.0820 DETERMINATION OF CREDIT 

The Certification Commission has Fmal authority with respect 
to a pproval of courses, sponsors, credit. PDH values for courses, 
and other methods of earning credit. The types of credit that 
will be considered by the Commission are as follows: 

0) Credit for college or community college courses will 
be based upon course credit established by the 
college. 

(2) Credit for seminars, workshops correspondence, 
televised, videotaped, audiotapes, and other short 
courses/tutorials will be based on one PDH unit for 
each hour of attendance or contact time. Attendance 
at programs presented at professional and technical 
society meeting will earn PDH units for the actual 
time of each program. 

(3) Credit determination for published papers, articles and 
books is the responsibility of the individual well 
contractor. 

(4) Credit for active participation in professional and 
technical societies (limited to two PDH per 
organization), requires that the well contractor attend 
at least 50 percent of the regularly scheduled 
meetings. PDH credits are not earned until the end of 
each year of membership. 

(5) Courses or activities offered by sponsors must contain 
a clear purpose and objective and result in the 
maintenance, improvement or expansion of skills and 
knowledge related to practicing well contractor 
activities and shall be deemed acceptable for meeting 
continuing education requirements without scrutiny of 
individual course content. 

History Note: Authority G.S. 87-98.12; 143B-301.il; 
Temporan' .Adoption Eff. December 15. 1998. 

.0830 RECORDKEEPING 

The responsibility of maintaining records to be used to support 
credits claimed is the responsibility of the contractor. Records 
required include, but are not limited to: 

(1) A jog showing the t^^pe of activit\ claimed, 
sponsoring organization. location. duration, 
instructors or speakers name and P.H. credits earned; 

Attendance verification records m the form of 
completion certificates, or other documents 
supporting evidence of attendance. 



m 



.0840 EXEMPTIONS 

A well contractor may be exempt from the professional 
development educational requirements for one of the following 
reasons: 



Well contractors, certified by way of examination or 
reciprocity, shall be exempt from obtaining the 
professional development hours prior to the first 
renewal. 

(2) A well contractor serving on temporary active duty in 
the uniformed services of the United States for a 
period of time exceeding 120 consecutive days jn a 
year shall be exempt from obtaining the professional 
development hours required during that year. 

(3) Well contractors experiencing physical disability, 
illness, or other extenuating circumstances as 
reviewed and approved by the board may be exempt. 
Supporting documentation must be furnished to the 
board. 

Histor}' Note: Authority G.S. 87-98. 12; 143B-301. 11; 
Temporary Adoption Eff. December 15, 1998. 



SECTION .0900 ■ 



.0901 



PROCEDURES FOR DISCIPLINARY 
ACTIONS 



Histor}' Note: .Authority' G.S. 87-98.12; 1438-301.11 ; 
Temporary Adoption Eff. December 15, 1998. 



REVOCATION, RELINQUISHMENT OR 
EXPIRATION OF CERTIFICATION 

(a) The Commission may revoke or suspend the certification 
of a well contractor in accordance with the provisions of G.S. 
87-98.8 and G.S. 150B-3. Prior to the Commission's taking 
action on a proposed revocation or suspension, the well 
contractor shall be given an opportunity to submit a written 
statement and present oral argument before the Commission at 
a regularly scheduled meeting. Notice of the meeting shall be 
delivered personally or by certified mail at least 1 5 days prior to 
the meeting. 

(b) Notice of the revocation or suspension shall be delivered 
to the well contractor personally or by certified mail at least 20 
days prior to the effective date of the revocation or suspension. 
The notice shall contain the alleged facts or conduct upon which 
the revocation or suspension is based and shall inform the well 
contractor of the opportunity to contest the action under G.S. 
150B before the effective date of revocation or suspension. 

(c) Certification may be relinquished bv submission to the 
Certification Commission of the original certificate and a 
notarized statement of relinquishment. 

(d) The Certification Commission may issue a written 
reprimand to a well contractor in accordance with G.S. 87-98.8. 
The reprimand shall be delivered personally or by certified mail. 
A copy of the letter will be kept in the well contractor's file and 



13:12 



NOR TH CAROLINA REGISTER December 15, 1998 



993 



TEMP01L4R Y RULES 



a copy will be sent to the well contractor's employer of record. 
The well contractor will be given the opportunity to gut a letter 
of rebuttal into the File when a reprimand has been issued. 

History Note: Authority G.S. 87-98.8: 143B-300: 150B-3: 

150B-38: 150B-40: 150B-43: 

Temporan' Adoption Eff. December 15, 1998. 

.0910 RECERTIFICATION FOLLOWING 

REVOCATION OR RELINQUISHMENT 

(a) After revocation or relinquishment has been effective for 
a period determine d b> the Commission, a person may apply in 
writing for recertification by the Commission, including in his 
petition any relevant facts concerning changes to conditions 
under which revocation or relinquishment occurred. Such facts 
shall show clearly that applicant will comply with the laws and 
regulations. 

(b) Within 120 days following receipt of an application for 
recertification. the Commission will notify- the applicant bs letter 
of its decision to deny or grant examination eligibilitN in 
accordance with procedures set out in ISA NCAC 27 .0301. 
Additional eligibility requirements including a show cause 
conference may be imposed by the Commission as it deems 
appropriate. Eligibility will only be granted if there is 
substantial evidence that the conditions leadin g to the revocation 
or relinquishment have been corrected. 

(c) Recertification of a person as a well contractor shall onl\ 
occur by means of application and examination. The 
examinations will not be waived. The applicant shall meet the 
eligibility requirements set forth in 15A NCAC 27 .0301. The 



Applicant shall not be eligible for temporary certification under 
G.S. 87-98. 7(c). 

(d) Upon notification of the Commission's decision to deny 
eligibility, the applicant may appeal the decision pursuant to the 
procedures contained in Article 3 A of G.S. I SOB. 

Hi5tor\' Note: Authority G.S. 87.98.8: 143B-301. 11: 150B-3: 

150B-43: 

Temporary Adoption Eff. December ]_5^ 1998. 

.0920 NOTIFICATION TO THE DEPARTMENT 

The Commission shall notify the Department of all actions 
taken in accordance with the requirements of this Section. 

History Note: Authority G.S. 87.98.8: 143B-301. 11: 
Temporary' Adoption Eff. December 15, 1998. 

.0930 CIVIL PENALTIES 

(a) Civil Penalties may be assessed by the Secretary against 
any person who directly commits or causes a violation of the 
provisions of the North Carolina Well Contractors Certification 
Act or any rule adopted thereunder. Each day of a continuing 
violation shall be a separate violation. 

(b) The Commission shall make the final agency decision in 
civil penalties assessed by the Secretary and shall exercise jts 
quasi-judicial powers in accordance with G.S. ISOB. 

History^ Note: Authority G.S 87-94: 87.98.4: 143B-301.il: 
Temporan' Adoption Eff. December 15, 1998. 



i 



i 



i 



994 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



RULES REVIEW COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. December 17, 1998. 
10:00 a.m. . at 1307 Glenwood Ave., Assembly Room, Raleigh, NC. Anyone wishing to submit written comment on any rule 
before the Commission should submit those comments to the RRC staff, the agency, and the individual Commissioners by 
Monday. December 14. 1998. at 5:00 p.m. Specific instructions and addresses may be obtained from the Rules Review 
Commission at 919-733-2721 . Anyone wishing to address the Commission should notify the RRC staff and the agency at 
least 24 hours prior to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Teresa L. Smallwood, Vice Chairman 

Jim Funderburke 

Vemice B. Howard 

Philip O. Redwine 

David Twiddy 



Appointed by House 

Paul Powell, Chairman 

Anita White, 2"" Vice Chairman 

Mark Garside 

Steve Rader 

George Robinson 



RULES REVIEW COMMISSION MEETING DATES 



December 17, 1998 



January 21, 1999 



MEETING DATE: NOVEMBER 19, 1998 

LOG OF FILINGS 

RULES SUBMITTED: OCTOBER 20, 1998 THROUGH NOVEMBER 20, 1998 



AGENCY/DIVISION RULE NAME 


RULE CITATION 


ACTION 


DEPARTMENT OF ADMINISTRATION 






Responsibility 


1NCAC5A.0001 


Amend 


Forms: Procedures: Terms and Conditions 


1 NCAC 5A .0008 


Amend 


Definitions 


1NCAC5A.0012 


Amend 


Procedure 


1 NCAC 5B .0101 


Amend 


Verbal Requests 


1 NCAC 5B .0102 


Amend 


Types of Specifications 


1 NCAC 5B .0201 


Amend 


Development of Specifications 


1 NCAC 5B .0203 


Amend 


Submission for Adoption 


1 NCAC 5B .0206 


Amend 


Qualified Products List 


1 NCAC 5B .0208 


Amend 


Contracting Requirements 


1 NCAC 5B .0301 


Amend 


Mailing Lists 


1 NCAC 5B .0302 


Repeal 


Telegraph, Facsimile. & Telephone Offers 


1 NCAC 5B .0303 


Amend 


Public Opening 


1 NCAC 5B .0305 


Amend 


Late Offers, Modifications & Withdrawals 


1 NCAC 5B .0306 


Amend 


Evaluation 


1 NCAC 5B .0309 


Amend 


Notification of Award 


1 NCAC 5B .0310 


Amend 


Solicitation Documents 


1NCAC5B.0314 


Amend 


Division of Requirements 


1 NCAC 5B .0315 


Adopt 


Advertisement Requirements 


1 NCAC 5B .0316 


Adopt 


Mandatory Conferences/Site Visits 


1 NCAC 5B .03 17 


Adopt 


General Delegation 


1 NCAC 5B .0401 


Repeal 


Review by Board of Award 


1 NCAC 5B .0402 


Repeal 


Division of Requirements 


1 NCAC 5B .0403 


Repeal 


Negotiation 


1 NCAC 5B .0503 


Amend 



13:12 



NOR TH CAROLINA REGISTER December 15,1 998 



995 



iOi 



mm 



1^^^ 



R ULES RE VIE W COMMISSION 



DEPARTMENT OF ADMINISTRATION 



General Procedures 


I NCAC 5B 


.0601 


Amend 


Policy 


I NCAC 5B 


.0701 


Amend 


General Policy 


1 NCAC 5B 


.0801 


Repeal 


Procedure 


I NCAC 5B 


.0802 


Repeal 


Specifications 


1 NCAC 5B 


.0905 


Amend 


Report of Discrepancy 


1 NCAC 5B 


.0906 


Amend 


Use 


1 NCAC 5B 


.1101 


Amend 


Determining Factors 


1 NCAC 5B 


.1102 


Amend 


Special Items 


1 NCAC 5B 


.1105 


Amend 


Procedures 


1 NCAC 5B 


.1301 


Repeal 


Designation of Authorized Persons 


1 NCAC 5B 


.1303 


Repeal 


Policy 


1 NCAC 5B 


.1401 


Amend 


Approval and Documentation 


I NCAC 5B 


.1402 


Amend 


Confidentiality 


1 NCAC 5B 


.1501 


Amend 


Funds for Different Sources 


1 NCAC 5B 


.1505 


Amend 


Change in Corporate Structure 


I NCAC 5B 


.1507 


Amend 


Purchasing from or Through Agency 


I NCAC 5B 


.1509 


Amend 


Use of Purchasing Power 


1 NCAC 5B 


.1510 


Amend 


Antitrust Violations 


1 NCAC 5B 


.1511 


Amend 


Availability of Services 


1 NCAC 5B 


.1512 


Amend 


Cooperative Purchasing 


1 NCAC 5B 


.1513 


Amend 


Good Requiring Immediate Acceptance 


1 NCAC 5B 


.1517 


Repeal 


Board of Award 


1 NCAC 5B 


.1518 


Amend 


Protest Procedures 


1 NCAC 5B 


.1519 


Amend 


Default Proceedings: Debarment 


I NCAC 5B 


.1520 


Amend 


Faithful Performance 


1 NCAC 5B 


.1521 


Amend 


Exemptions 


I NCAC 5B 


.1601 


Amend 


Emergencies 


1 NCAC 5B 


.1602 


Amend 


Special Delegations 


I NCAC 5B 


.1603 


Amend 


General Delegations 


1 NCAC 5B 


.1604 


Adopt 


Compliance Reviews 


1 NCAC 5B 


.1605 


Adopt 


Record Maintenance 


1 NCAC 5B 


.1901 


Amend 


Files 


1 NCAC 5B 


.1903 


Amend 


Applications for Addition to Mailing List 


1 NCAC 5B 


.1906 


Repeal 


Term Contracts 


1 NCAC 5B 


.1907 


Repeal 


Canvassing Bid Files 


1 NCAC 5B 


.1909 


Repeal 


RATION/NC STATE COMMISSION OF INDIAN AFFAIRS 






Organizational Assistance 


1 NCAC 15 


0202 


Amend 


Tribal Organizational Options 


1 NCAC 15 


0203 


Amend 


Petition for Recognition 


1 NCAC 1 5 


0204 


Amend 


Procedure for Recognition 


1 NCAC 15 


0207 


Amend 


Tribal Definition 


1 NCAC 15 


0208 


Amend 


Criteria for Recognition as a Tribe 


1 NCAC 15 


0209 


Amend 


Criteria for Recognition 


1 NCAC 15 


0210 


Repeal 


Recognition Requirement 


1 NCAC 15 


0211 


Amend 


Tribal Roll 


1 NCAC 15 


0214 


Amend 


RATION 

State Clearinghouse 


1 NCAC 25 


0211 


Amend 


Environmental Bulletin 


1 NCAC 25 


0212 


Amend 


Environmental Polic> Act Advisory Comm 


1 NCAC 25 


0213 


Amend 


Minimum Criteria 


1 NCAC 25 


0301 


Amend 


Approval of Criteria 


1 NCAC 25 


0302 


Amend 


Revision of Criteria 


1 NCAC 25 


0303 


Amend 


Document under NEPA Deemed Adequate 


1 NCAC 25 


0402 


Amend 


Internal Review 


1 NCAC 25 


0504 


Amend 


Content of FONSI 


1 NCAC 25 


0505 


Amend 



996 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



RULES REVIEW COMMISSION 



Review Process 

Scoping 

Format and Content 

Review Process 

DEPARTMENT OF ADMINISTRATION/STATE BUILDING COMMISSION 

Evaluation Review 

DEPARTMENT OF COMMERCE/COMMERCE FINANCE CENTER 

Operator 

Pre-Application Conference 

Formal Application Procedures 

Formal Application: Public Hearing 

Project Certification From DENR 

Manufacturing Wage Test 

Jobs Saved or Generated Test 

Background and Objectives 

Definitions 

Date of Receipt of Applications 

Application Categories and Requirements 

Review of Applications and Funding 

Eligibility Requirements 

Review: APP/Funding/Emergency Asst Projects 

Eligibility Requirements 

General 

Required Findings 

Formal Applications Procedures 

Formal Application Procedures: Approval 

Findings Requirements 

General 

Limitations 

Reversion of Funds 

Reporting Requirements 

Designation of the Fifty Counties 

Program Purpose and Objective 

Definitions 

Eligible Applicants 

Funding Limitations 

Projects not to be Considered for Funding 

Pre-Application Conference 

Applications 

Discretionary Public Hearing 

Formal Application Procedures: Approval 

Formal Application Procedures: Denial 

General 

Criteria for Making Necessary Findings 

Grant Agreement and Funding Approval 

Method of Payment 

Monitoring and Grant Close Out 



1 NCAC 25 .0506 


Amend 


1 NCAC 25 .0602 


Amend 


1 NCAC 25 .0603 


Amend 


1 NCAC 25 .0605 


Amend 


1 NCAC 30F .0305 


Amend 


4 NCAC IE. 0104 


Amend 


4 NCAC IE. 0202 


Amend 


4 NCAC IE. 0205 


Amend 


4 NCAC IE. 0206 


Amend 


4 NCAC IE. 0207 


Amend 


4 NCAC IE. 0303 


Amend 


4 NCAC IE. 0306 


Amend 


4 NCAC 11.0101 


Amend 


4 NCAC 11.0102 


Amend 


4 NCAC 11 .0201 


Amend 


4 NCAC 11.0202 


Amend 


4 NCAC 11.0301 


Amend 


4 NCAC 11.0302 


Amend 


4 NCAC 11.0303 


Repeal 


4 NCAC 11.0304 


Repeal 


4 NCAC 11.0401 


Repeal 


4 NCAC 11.0402 


Amend 


4 NCAC 11 .0403 


Amend 


4 NCAC 11.0404 


Amend 


4 NCAC 11 .0405 


Repeal 


4 NCAC 11.0501 


Amend 


4 NCAC 11.0502 


Amend 


4 NCAC 11.0503 


Amend 


4 NCAC 11.0601 


Repeal 


4 NCAC 11.0701 


Amend 


4NCAC1K.0101 


Amend 


4 NCAC IK. 0102 


Amend 


4 NCAC IK. 0103 


Amend 


4 NCAC IK. 0104 


Amend 


4 NCAC IK. 0105 


Amend 


4 NCAC IK. 0202 


Amend 


4 NCAC IK. 0203 


Amend 


4 NCAC IK. 0204 


Amend 


4 NCAC IK. 0205 


Amend 


4 NCAC IK. 0206 


Amend 


4 NCAC IK. 0301 


Amend 


4 NCAC IK. 0302 


Amend 


4 NCAC IK. 0401 


Amend 


4 NCAC IK. 0402 


Amend 


4 NCAC IK .0404 


Amend 



DHHS/COMMISSION FOR MH/DD/SAS 

Carolina Alternatives 



lONCAC 14C.1151 



Amend 



DHHS/DIVISION OF MEDICAL ASSISTANCE 

Rate Setting Method for Non-State Facilities 
Purpose: Scope and Notice of Change 
Program Definition 
Enrollment 



1 NCAC 26H .0304 Amend 

10 NCAC 261 .0101 Amend 

10NCAC26M.020] Amend 

10 NCAC 26M .0202 Amend 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



997 



sgga^amamm 



^ 



RULES REVIEW COMMISSION 



Access to Care 

EnroUee and Subcontractor Appeals 

DEPARTMENT OF INSURANCE 

High Deductible Plans 
Creditable Coverage 
Guaranteed Issue for Eligible 



DEPARTMENT OF LABOR 



DEPARTMENT OF LABOR 



DENR 



Wage and Hour Office 

Forms 

Certification of Tips 

Withholding of Wages 

Authorization for Withholding of Wages 

Vacation Pay 

Bonuses and Commissions 

Final Pay for Separated Employees 

Form of Payment of Wages 

Other Amounts Promised as Wages 

Counting Employees 

Conduct of Investigations 

Supervision of Payment 

dministrative Remedies 

Litigation 

Civil Penalties 

Civil Penalty Assessment 

Scope of Promised Wages 

Notification at Time of Hiring 

Notification During Employment 

Meaning of Maintained in a Place Accessible 

Methods of Providing Emp. with Itemized State 



Workplace Retaliatory Discrimination Office 

Forms 

Definitions 

Contents of Complaint 

Filing of Complaints 

Investigation 

Interviews 

Right-to-Sue Letters 

Requests for Right-to-Sue Letters 

Administrative Closings 

Withdrawals 

Right-to-Sue Dismissals 

Right-to-Sue Closure 

Settlements 

Settlement 

Litigation 



Scope of Delegated Authority 

Eligibility for Delegation of Authority 

Delegation of Authority 

Lapsed Delegations 

Agents Serving as Contractors 

Evaluation 

Denial. Suspension and Revocation 



10NCAC26M.0203 


Amend 


10NCAC26M.0305 


Amend 


IINCAC 12.0840 


Adopt 


11NCAC12.0841 


Adopt 


IINCAC 12.0842 


Adopt 


13NCAC 12.0101 


Repeal 


13NCAC 12.0104 


Repeal 


13NCAC 12.0303 


Amend 


13NCAC 12.0304 


Amend 


13NCAC 12.0305 


Amend 


I3NCAC 12,0306 


Amend 


13NCAC 12.0307 


Amend 


13 NCAC 12.0308 


Adopt 


13NCAC 12.0309 


Adopt 


13 NCAC 12.0310 


Adopt 


13 NCAC 12.0502 


Repeal 


13 NCAC 12.0602 


Amend 


13 NCAC 12.0603 


Repeal 


13 NCAC 12 .0604 


Amend 


13 NCAC 12.0605 


Repeal 


13 NCAC 12.0701 


Amend 


13 NCAC 12.0702 


Amend 


13 NCAC 12.0803 


Adopt 


13 NCAC 12.0804 


Adopt 


13 NCAC 12.0805 


Adopt 


13 NCAC 12.0806 


Adopt 


13 NCAC 12.0807 


Adopt 


13 NCAC 19.0101 


Adopt 


13 NCAC 19.0102 


Adopt 


13 NCAC 19.0201 


Adopt 


13 NCAC 19.0301 


Adopt 


13 NCAC 19.0302 


Adopt 


13 NCAC 19.0401 


Adopt 


13 NCAC 19.0402 


Adopt 


13 NCAC 19.0501 


Adopt 


13 NCAC 19.0502 


Adopt 


13 NCAC 19.0601 


Adopt 


13 NCAC 19.0602 


Adopt 


13 NCAC 19.0603 


Adopt 


13 NCAC 19.0604 


Adopt 


13 NCAC 19.0605 


Adopt 


13 NCAC 19.0701 


Adopt 


13 NCAC 19.0702 


Adopt 


15 NCAC 10. 0101 


Adopt 


15 NCAC 10.0102 


Adopt 


15 NCAC 10.0103 


Adopt 


15 NCAC 10.0104 


Adopt 


15 NCAC 10.0105 


Adopt 


15 NCAC 10.0106 


Adopt 


15 NCAC 10.0107 


Adopt 



998 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



RULES REVIEW COMMISSION 



I 



► 



Re-Authorization 
Appeals Procedures 

DENR/ENVIRONMENTAL MANAGEMENT COMMISSION 

Randleman Lake Water Supply Watershed 
Wastewater Discharge Requirements 
Protection and Maintenance of Reparian Areas 
Stormwater Requirements 
Cape Fear River Basin 

DENR/SOIL AND WATER CONSERVATION COMMISSION 

Cost Share Agreement 

DENR/COASTAL RESOURCES COMMISSION 

Specific Use Standards for Ocean Hazard Areas 
Reserve Components 
Reserve Use Requirements 

DENRAVILDLIFE RESOURCES COMMISSION 

Manner of Taking Inland Game Fish 
Open Seasons: Creel and Size Limits 
Special Device Fishing 
Possession of Licenses 
Dare County 

DENR/DIVISION OF PARKS AND RECREATION 

Use of Pyrotechnics in State Parks 

DENR/COMMISSION FOR HEALTH SERVICES 

Tagging 

Public Display of Consumer Advisory 

Modifications of the Adoption by Reference 

Shellfish 



15NCAC lO 


.0108 


Adopt 


15NCAC lO 


.0109 


Adopt 


15NCAC2B 


.0248 


Adopt 


15NCAC2B 


.0249 


Adopt 


15NCAC2B 


.0250 


Adopt 


15NCAC2B 


.0251 


Adopt 


15NCAC2B 


.0311 


Amend 



15NCAC6E.0107 



Amend 



15NCAC7H.0308 


Amend 


15NCAC7O.0105 


Amend 


15NCAC7O.0202 


Amend 


15NCAC IOC .0302 


Amend 


15NCAC IOC .0305 


Amend 


15NCAC IOC .0404 


Amend 


15NCAC IOC .0405 


Amend 


15NCAC 10F.0310 


Amend 



15NCAC 12B.0901 Amend 



15NCAC 18A.0425 Amend 

15NCAC 18A.0432 Adopt 

1 5 NC AC 18 A. 1202 Amend 

15NCAC 18A.2612 Amend 



REVENUE, DEPARTMENT OF 



Approval Required for Substitute Forms 



17NCAC 1C.0601 



Adopt 



REVENUE, DEPARTMENT OF 



Inheritance and Estate Tax Return 

Inheritance and Estate Tax Certificate 

Inheritance and Estate Tax Waiver 

Lock Box Release 

Life Insurance: Accidental Death 

Life Insurance: Mortgage Cancellation 

Deductions: Mortgage Note 

Valuation: Treasury Bonds 

Valuation: Real Property 

Federal Estate Tax 

Mortgages against Real Property 



REVENUE, DEPARTMENT OF 



General License Provisions 

Liquid Base Rate Illustrated 

Products not used in manufacturing Process 

Domestic Use Versus Commercial Use 

Representative List 

Federal Government 

Application for Exemption Required 



17NCAC3B 


.0102 


Repeal 


17NCAC3B 


.0103 


Repeal 


17NCAC3B 


.0104 


Repeal 


17NCAC3B 


.0106 


Repeal 


I7NCAC3B 


.0108 


Repeal 


17NCAC3B 


.0109 


Repeal 


I7NCAC3B 


.0110 


Repeal 


17NCAC3B 


.0111 


Repeal 


17NCAC3B 


.0112 


Repeal 


17NCAC3B 


.0113 


Repeal 


17NCAC3B 


.0114 


Repeal 


17NCAC4D 


.0204 


Repeal 


17NCAC4D 


.0303 


Repeal 


17NCAC4D 


.0305 


Repeal 


17NCAC4D 


.0401 


Repeal 


17NCAC4D 


.0402 


Repeal 


17NCAC4D 


.0501 


Repeal 


17NCAC4D 


.0505 


Repeal 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



999 



R ULES RE VIE W COMMISSION 



Exempt Sales Records 

Natural Products Determined 

Only NC Taxpaid Indicia Allowed 

Report by Distributor or Wholesaler 

Report by Retailer 

Report by Dealer on Trains 

Discount for TimeK' Filing and Payment 

Invoicing Requirements 

Liabilit>' Under G.S. 105-1 13.51(a) 

Liabilit> Under G.S. 105-1 13, 51(b) 



REVENUE, DEPARTMENT OF 



Extension of Filing Date 
Investment in Subsidiary' 
Business and Nonbusiness Income 
Extension of Filing Date 
Requirements when Corporation Ends 
Withdrawals/Filing Requirement 



REVENUE, DEPARTMENT OF 



Items Requiring Special Attention 

Common Carriers 

Electronic Filing of Individual Income Tax Returns 

Credit for Child and Dependent Care 

Penalties for Failure to File 

Fraud Penalt\' 

Failure to File Informational Returns 

Failure to File Penalties 

Definition of Resident 

Taxable Income of Residents 

Tax Credits 

Additional Withholding 



REVENUE, DEPARTMENT OF 



Returns 

Sales b\ Manufacturers 

Out-of-State Deliveries 

Deliveries to Donees 

Refunds to Nonprofit Entities 

Governmental Entities not Eligible for Refunds 

Sales to and by Hospitals 

Sales to Tire Recappers 

Food and Food Products 

Seafoods 

Florists' Deli\er> Associations 

Telecommunications and Telegraph Companies 

Exempt Orthopedic Appliances 

Exempt Therapeutic Devices 

Sales of Lubricants 

MonthK Sales and Use Tax Report Form 

QuarterK Sales and Use Tax Report Form 

Sales and Use Tax Chart 

Sales and Use Tax Chart: E-502A 

Res. Application; Sales Use Tax 

Notice of Proposed Tax Assessment Form 

Application Renewal of Wholesale License Form 

Notice of Delinq2uent Tax Report Form 

Extension of Time for Filine Sales and Use Tax 



17NCAC4D 


.0506 


Repeal 


17NCAC4D 


.0508 


Repeal 


17NCAC4D 


.0610 


Repeal 


17NCAC4D 


.0901 


Repeal 


I7NCAC4D 


.0902 


Repeal 


17NCAC4D 


.0903 


Repeal 


17NCAC4D 


.0907 


Repeal 


17NCAC4D 


.0908 


Repeal 


17NCAC4D 


.1001 


Repeal 


17NCAC4D 


.1003 


Repeal 


17NCAC5B 


.0107 


Amend 


17NCAC5B 


.1105 


Amend 


17NCAC5C 


.0703 


Amend 


17NCAC5C 


.2004 


Amend 


17NCAC5C 


.2101 


Amend 


17NCAC5C 


.2102 


Repeal 


17NCAC6B 


.0104 


Amend 


17NCAC6B 


.0110 


Amend 


17NCAC6B 


.0118 


Amend 


17NCAC6B 


.0606 


Amend 


17NCAC6B 


.3203 


Amend 


I7NCAC6B 


.3206 


Amend 


17NCAC6B 


.3207 


Repeal 


17NCAC6B 


.3719 


Repeal 


17NCAC6B 


.3901 


Amend 


17NCAC6B 


.3904 


Amend 


17NCAC6B 


.4004 


Amend 


17NCAC6C 


.0124 


Amend 


I7NCAC7B 


.0104 


Amend 


17NCAC7B 


.0206 


Amend 


17NCAC7B 


.1301 


Amend 


17NCAC7B 


.1303 


Amend 


17NCAC7B 


.1602 


Amend 


17NCAC7B 


.1704 


Amend 


17NCAC7B 


.1801 


Amend 


17NCAC7B 


.1905 


Amend 


17NCAC7B 


.2201 


Amend 


17NCAC7B 


.2212 


Amend 


17NCAC7B 


.2802 


Amend 


17NCAC7B 


.3201 


Amend 


17NCAC7B 


.3301 


Amend 


17NCAC7B 


.3302 


Amend 


17NCAC7B 


.3702 


Amend 


17NCAC7B 


.5401 


Repeal 


17NCAC7B 


.5402 


Repeal 


17NCAC7B 


.5403 


Repeal 


17NCAC7B 


.5404 


Repeal 


17NCAC7B 


.5405 


Repeal 


17NCAC7B 


.5406 


Repeal 


17NCAC7B 


.5408 


Repeal 


17NCAC7B 


.5409 


Repeal 


17NCAC7B 


.5410 


Repeal 



1000 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



RULES REVIEW COMMISSION 



Certificate of Overpayment for 90 Days Form 

Certificate of Overpayment Form 

Receipt for Sales Tax Paid Form 

Merchants Certificate of Registration Form 

Schedule of County Sales and Use Taxes Form 

Certificate of Authority Form 

Bond Form 

Numerical and Alphabetical List of Counties 

Analysis of Tax by Leased Department Form 

Analysis of State Sales and Use Tax by City Form 

Sales Report for Fair Concessions Form 

List of Post Offices in Taxing Counties Form 

Notice of Amended Assessment Form 

Manufacturers Certificate Form 

Interstate Carrier Claim for Refund Form 

Claim for Refund of Taxes Form: Churches 

Claim for Refiand of Taxes Form: General Refund 

Affidavit Form 

Certificate of Resale Form 

Commercial Fisherman's Certificate Form 

Contractor's and Subcontractor's Certificate Form 

Logging and Pulpwood Certificate Form 

Purchaser's Affidavit of Export Form 

Request for Sales/Use Tax Credit by Vendee Form 

Sales and Use Tax Chart 

Semimonthly Sales and Use Tax Report Form 

Motor Vehicle Lease and Rental Report Form 

Scrap Tire Disposal Tax Report Form 

Monthly Sales and Use Tax Report Form 

Notice/Taxpayers Filing 13 Reports a Year Form 

Notice for Taxpayers Filing 26 Reports/Year Form 

Extension of Time for Filing Sales and Use Tax 

Special Sales and Use Tax Remittance Form 

Notice of Tax Due Form 

Notice of Tax Due Form 

Notice to Newly Registered Wholesale Merchants 

Notice to all Taxpayers Form 

Utilities and Municipalities Sales Tax Report Form 

Claim/Refund of County Sales & Use Taxes Form 

Use Tax Report Form 

Claim for Refund of State & County Sales/Use 

Claim/Refund of White Goods Disposal Tax Form 



REVENUE, DEPARTMENT OF 

Carry Forward Credits 

TRANSPORTATION, DEPARTMENT OF/RAIL DIVISION 

Definition of Program 

Eligible Costs 

Ineligible Costs 

Industry Certification 

Application Evaluation 

Procurements 

Request for Reimbursement 

Retainage 

Repayment 

Grant Agreement 



I7NCAC7B 


.5411 


Repeal 


I7NCAC7B 


.5412 


Repeal 


17NCAC7B 


.5414 


Repeal 


17NCAC7B 


.5415 


Repeal 


I7NCAC7B 


.5416 


Repeal 


17NCAC7B 


.5417 


Repeal 


17NCAC7B 


.5418 


Repeal 


I7NCAC7B 


.5419 


Repeal 


17NCAC7B 


.5420 


Repeal 


I7NCAC7B 


.5421 


Repeal 


17NCAC7B 


.5422 


Repeal 


I7NCAC7B 


.5423 


Repeal 


17NCAC7B 


.5424 


Repeal 


17NCAC7B 


.5428 


Repeal 


17NCAC7B 


.5429 


Repeal 


I7NCAC7B 


.5430 


Repeal 


I7NCAC7B 


.5431 


Repeal 


I7NCAC7B 


.5432 


Repeal 


17NCAC7B 


.5433 


Repeal 


17NCAC7B 


.5434 


Repeal 


17NCAC7B 


.5435 


Repeal 


17NCAC7B 


.5438 


Repeal 


17NCAC7B 


.5440 


Repeal 


I7NCAC7B 


.5442 


Repeal 


I7NCAC7B 


.5443 


Repeal 


17NCAC7B 


.5444 


Repeal 


17NCAC7B 


.5447 


Repeal 


I7NCAC7B 


.5448 


Repeal 


I7NCAC7B 


.5449 


Repeal 


I7NCAC7B 


.5450 


Repeal 


I7NCAC7B 


.5451 


Repeal 


I7NCAC7B 


.5452 


Repeal 


17NCAC7B 


.5453 


Repeal 


17NCAC7B 


.5454 


Repeal 


17NCAC7B 


.5455 


Repeal 


I7NCAC7B 


.5456 


Repeal 


I7NCAC7B 


.5457 


Repeal 


17NCAC7B 


.5458 


Repeal 


I7NCAC7B 


.5459 


Repeal 


I7NCAC7B 


.5460 


Repeal 


I7NCAC7B 


.5461 


Repeal 


17NCAC7B 


.5463 


Repeal 


17NCAC9I . 


0301 


Repeal 


19NCAC6B 


.0401 


Amend 


19NCAC6B 


.0404 


Amend 


I9NCAC6B 


.0405 


Amend 


19NCAC6B 


.0409 


Amend 


19NCAC6B 


.0410 


Amend 


19NCAC6B 


.0412 


Repeal 


19NCAC6B 


.0413 


Amend 


I9NCAC6B 


.0414 


Repeal 


I9NCAC6B 


.0417 


Amend 


I9NCAC6B 


.0418 


Adopt 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



1001 



RULES REVIEW COMMISSION 



STATE BOARDS/NC ACUPUNCTURE LICENSING BOARD 

Qualifications for Licensure 

Qualifications for Licensure thru Reciprocity 

STATE BOARDS/NC STATE BOARD OF CERTIFIED PUBLIC ACCOUNTANT 

Definitions 

Holding out to the Public 

Direct Supervision Defined 

New CPA Firm, Ongoing CPA Firm 

Communication of Results of CPA Exam 

Candidates' Accountancy Law Course Requirement 

Reciprocal Certificates 

Temporan. Permit 

Modification of Discipline and New Cert. 

Supervision of CPA Offices 

Mailing Addresses of Certificate Holders 

CPA Firm Registration 

Registration and SQR Fees 

Compliance with CPA Firm 

Registration and Renewal 

Supplemental Reports 

Registration Requirements 

Prohibition of Abuse 

CPA Firms Deemed in Compliance 

Selection of Engagement to be Reviewed 

Notice to Clients 

Certain Offices Excluded 

Selection of a Review Team 

Duty to Respond to Questions 

Qualifications of Reviewers & Team Captains 

Independence for a Reviewed CPA Firm 

Conflict of Interest 

Performing the Review 

Confidentialit}' 

Reporting Requirements 

SQR Advisor>' Committee 

Objections to SQR Advisory Committee 

Review of Protest 

Deceptive Conduct Prohibited 

Reporting Convictions. Judgements 

Forms of Practice 

Objectivit}' and Conflicts of Interest 

Advertising or Other Forms of Solicitation 

CPA Firm Names 

STATE BOARDS/NC MEDICAL BOARD 

Fee 

Definitions 

Scope of Practice 

Nurse Practitioner Approval 

Requirements for Approval of Nurse Practitioner 

Annual Renewal 

Continuing Education 

Inacti\e Status 

Prescribing Authoritv' 

Quality Assurance Standards 

Method of Identification 

Disciplinary Action 



21NCAC 1 .0101 


Amend 


21 NCAC 1 .0105 


Amend 


EXAMINERS 

21 NCAC 8A .0301 


Amend 


21 NCAC 8A .0308 


Amend 


21 NCAC 8A.0310 


Amend 


21 NCAC 8A 0315 


Amend 


21 NCAC 8F .0107 


Amend 


21 NCAC 8F .0504 


Amend 


21 NCAC 8H .0101 


Amend 


21 NCAC 8H .0102 


Amend 


21 NCAC 81 .0104 


Amend 


21 NCAC8J .0102 


Repeal 


21 NCAC 8J .0107 


Amend 


21 NCAC 8J .0108 


Amend 


21 NCAC 8J .01 10 


Amend 


21 NCAC 8J .01 11 


Amend 


21 NCAC 8K .0104 


Amend 


21 NCAC 8K .0105 


Amend 


21 NCAC 8M .0102 


Amend 


21 NCAC 8M .0103 


Amend 


21 NCAC 8M .0104 


Amend 


21 NCAC 8M .0201 


Amend 


21 NCAC 8M .0202 


Amend 


21 NCAC 8M .0204 


Amend 


21 NCAC 8M .0206 


Amend 


21 NCAC 8M .0207 


Amend 


21 NCAC 8M .0301 


Amend 


21 NCAC 8M .0302 


Amend 


21 NCAC 8M .0303 


Amend 


21 NCAC 8M .0304 


Amend 


21 NCAC 8M .0305 


Amend 


21 NCAC 8M .0306 


Amend 


21 NCAC 8M .0401 


Amend 


2 1 NCAC 8M .0402 


Amend 


21 NCAC 8M .0403 


Amend 


21 NCAC 8N .0202 


Amend 


21 NCAC 8N .0208 


Amend 


21 NCAC 8N .0302 


Amend 


21 NCAC 8N .0303 


Amend 


21 NCAC 8N .0306 


Amend 


21 NCAC8N .0307 


Amend 


21 NCAC 32F .0103 


Adopt 


21 NCAC 32M .0101 


Adopt 


21 NCAC 32M .0102 


Adopt 


21 NCAC 32M .0103 


Adopt 


21 NCAC 32M .0104 


Adopt 


21 NCAC 32M .0105 


Adopt 


21 NCAC 32M .0106 


Adopt 


21 NCAC 32M .0107 


Adopt 


21 NCAC 32M .0108 


Adopt 


21 NCAC 32M .0109 


Adopt 


21 NCAC32M.0110 


Adopt 


21 NCAC 32M .01 11 


Adopt 



1002 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



RULES REVIEW COMMISSION 



Fees 


21NCAC32M.01I2 


Adopt 


Practice During a Disaster 


21 NCAC32M.0113 


Adopt 


Definitions 


2INCAC32O.0101 


Repeal 


Qualifications for License 


21NCAC32O.0102 


Repeal 


Temporary License 


21NCAC32O.0103 


Repeal 


Inactive License Status 


21 NCAC 320.0104 


Repeal 


Annual Registration 


21 NCAC 320 .0105 


Repeal 


Continuing Medical Education 


21 NCAC 320 .0106 


Repeal 


Exemption from License 


21 NCAC 320 .0107 


Repeal 


Scope of Practice 


21 NCAC 320 .0108 


Repeal 


Prescriptive Authority 


21 NCAC 320 .0109 


Repeal 


Supervision of Physician Assistants 


21 NCAC 320 .0110 


Repeal 


Supervising Physicians 


21 NCAC 320 .01 11 


Repeal 


Notification of Intent to Practice 


21 NCAC 320 .01 12 


Repeal 


Satellite Settings 


21 NCAC 320 .01 13 


Repeal 


Exclusions of Limitations on Employment 


21 NCAC 320 .01 14 


Repeal 


Assumption of Professional Liability 


21 NCAC 320 .01 15 


Repeal 


Violations 


21 NCAC 320 .01 16 


Repeal 


Disciplinary Authority 


21 NCAC 320 .01 17 


Repeal 


Continuing Medical Education Required 


21 NCAC 32R .0101 


Adopt 


Approved Categories of CME 


21 NCAC 32R .0102 


Adopt 


Exceptions 


21 NCAC 32R .0103 


Adopt 


Reporting 


21 NCAC 32R .0104 


Adopt 


Definitions 


21 NCAC 32S .0101 


Adopt 


Qualifications for License 


21 NCAC 32S .0102 


Adopt 


Temporary License 


21 NCAC 32S .0103 


Adopt 


Inactive License Status 


21 NCAC 32S .0104 


Adopt 


Annual Registration 


21 NCAC 32S .0105 


Adopt 


Continuing Medical Education 


21 NCAC 32S .0106 


Adopt 


Exemption from License 


21 NCAC 32S .0107 


Adopt 


Scope of Practice 


21 NCAC 32S .0108 


Adopt 


Prescriptive Authority 


21 NCAC 32S .0109 


Adopt 


Supervision of Physician Assistants 


21 NCAC 32S .01 10 


Adopt 


Supervising Physicians 


21 NCAC 32S .01 11 


Adopt 


Notification of Intent to Practice 


21 NCAC 32S .01 12 


Adopt 


Violations 


21 NCAC 32S .01 13 


Adopt 


Disciplinary Authority 


21 NCAC 32S .0114 


Adopt 


Title and Practice Protection 


21 NCAC 32S .01 15 


Adopt 


Identification Requirements 


21 NCAC32S.0116 


Adopt 


Fees 


21 NCAC 32S .0117 


Adopt 


Practice During a Disaster 


21 NCAC 32S .01 18 


Adopt 



STATE BOARDS/NC BOARD OF NURSING 

Approval and Practice Parameters 

STATE BOARDS/NC BOARD OF PHARMACY 

Definitions 

Drug Distribution and Control 
Requirement of Personal Appearance 
Prescription: Receiving and Dispensing 
Automated Dispensing or Drug Supply Devices 
Pharmacist Work Conditions 



21 NCAC 36 .0227 



Amend 



21 NCAC 46 


.1317 


Amend 


21 NCAC 46 


.1414 


Amend 


21 NCAC 46 


.1606 


Amend 


21 NCAC 46 


.1804 


Amend 


21 NCAC 46 


.1814 


Adopt 


21 NCAC 46 


.2506 


Adopt 



RULES REVIEW COMMISSION 
November 19, 1998 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



1003 



RULES REVIEW COMMISSION 



MINUTES 

The Rules Review Commission met on November 19, 1998, in the Assembly Room of the Methodist Building, 1307 Glenwood 
Avenue. Raleigh. North Carolina. Commissioners in attendance were Chairman Paul Powell, David R. Twiddy, Jim R. Funderburk, 
Anita A. White, Mark P. Garside, and George S. Robinson (by telephone). 

Staff members present were: Joseph J. DeLuca, Staff Director; Bobby Bryan, Rules Review Specialist; and Sandy Webster 



( 



The following people attended: 



David Brown 
Nancy Scott 
Juanita Gaskill 
Aaron Padgett 
Jim Hall 
RMFry 
Dedra Alston 
Dwight Lancaster 
Shirley Bullard 
Jerry Perkins 
Ed Buchan 
Marc Lodge 
EUie Sprenkel 
Shamese Ransome 
Theresa Shackelford 
Janice Fain 
Anna Carter 
Susan Randolph 
Thomas Allen 
T Reeder 
Roberta Oeullette 
Mel Black 
Valerie Chaffin 
McKinlev Wooten 
Frank Crawley 
W R Hoke 
Denise Stanford 



DENR/Child Day Care 

Attorney General 

DENR'Marine Fisheries 

DENR/Radiation Protection 

DENR/Child Day Care 

DENR/Radiation Protection 

DENR 

DENR/Water Quality 

DHHS 

DENR/State Revolving Fund 

DENR/DEH 

DHHS 

Insurance 

DHHS/Social Services 

Insurance 

DHHS/Child Day Care 

DHHS/Child Day Care 

DHHS 

DENR/Water Quality 

DENR/Water Quality 

NC Appraisal Board 

NC Appraisal Board 

Hunton & Williams 

Attorney General 

Attorney General 

Electrical Contractors 

NC Board of Pharmacy 



APPROVAL OF MINUTES 

The meeting was called to order at 10:05 a.m. with Chairman Powell presiding. He asked for any discussion, comments, or 
corrections concerning the minutes of the October 22, 1998 meeting. There being none, the minutes were approved. 

FOLLOW-UP MATTERS 

4NCAC 3B .0101, .0102, and .0103: COMMERCE/Banking Commission - No response was received from the agency on these 
rules. 

4 NCAC 3H .0002: COMMERCE/'Banking Commission - No response was received from the agency on this rule. 

10 NCAC 3R .61 12: DHHSMedical Care Commission -No response was received from the agency on this rule. 

12 NCAC 9B .0301 and .0603: JUSTICE/Criminal Justice Education & Training Standards Commission - The rewritten rule 
submitted for .0301 was objected to by the Commission because (d) still requires instructors to meet any continuing education courses 
"deemed necessary and appropriate by the Commission." The deletion of (b) was approved by the Commission. The rewritten rule 
submitted for .0603 was approved by the Commission contingent upon receiving the technical change. The change was subsequently 
received. 



1004 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



RULES REVIEW COMMISSION 



15A NCAC lOF .0301: DENRAVildlife Resources Commission - The rewritten rule submitted by the agency was approved by the 
Commission. 

15ANCAC 13B .1624: DENR/Commission for Health Services - The rewritten rule submitted by the agency was approved by the 
Commission. 

15A NCAC 16A .0101: DENR/Commission for Health Services - The repeal submitted by the agency was approved by the 
Commission. 

15A NCAC 18A .2522, .2537, .2804, .2808, .2827, and .2833: DENR/ Commission for Health Services - The rewritten rules 
submitted by the agency were approved by the Commission with the exception of .2804 which was objected to by the Commission. 
It is still imclear what sources of potentially hazardous food the day care centers are required to use and how they are to identify such 
sources. 

LOG OF FILINGS 

Chairman Powell presided over the review of the log and all rules were unanimously approved with the following exceptions: 

10 NCAC 3U .0305, and .2805: DHHS/Child Care Commission - The Commission objected to .0305 and .2805 due to ambiguity. 
It is not clear how the compliance history ratings are determined. 

10 NCAC 3U .1601: DHHS/Child Care Commission - The Commission objected to .1601 due to ambiguity. As written, .1601 
appears to apply to all centers, but the section title implies that it only applies to programs seeking to be recognized as meeting 
enhanced standards. It is not clear to whom the .1600 rules apply. 

10 NCAC 3U .2806: DHHS/Child Care Commission - The Commission objected to .2806 due to ambiguity. In (b)(2), (c)(2), and 
(d)(2), it is not clear what constitutes a "nationally recognized" accrediting organization. 

10 NCAC 3U .2810: DHHS/Child Care Commission - The Commission objected to .2810 due to ambiguity. In (c), it is not clear 
what standards the division will use in approving individuals to perform rating scale assessments. 

10 NCAC 20C .0206: DHHS/Division of Vocational Rehabilitation Services - The Commission objected to this rule due to lack of 
statutory authority and ambiguity. In (1) there is no authority for allowing the waiver provision without specific guidelines. "[G]ood 
cause" is not specific. It is also unclear whether the unit manager may refuse to approve the waiver if "good cause" (once it is 
specified) is shown. This may simply be a requirement that the waiver be in writing and that the unit manager be the decision maker. 

10 NCAC 4 1 E, G, R, S and T: DHHS/Social Services Commission - These rules were withdrawn by the agency. 
Commissioner White recused herself from the Department of Insurance rules. 

1 1 NCAC 8 .0912 - rNSURANCE/Manufactured Housing Board: The Commission objected to this rule due to lack of statutory 
authority. In (f)(4), there is no authority for including questions about federal laws and rules on the examination. There is also no 
authority for the exemption in (I). G.S. 143-143.1 1(h) requires a person to pass an examination in order to obtain a license. 

12 NCAC 7D .1201, and .1202: JUSTICE/NC Private Protective Services Board - The Commission objected to the .1200 rules due 
to lack of statutory authority. There is no authority for setting requirements for instructors of instructors. G.S. 74C-13(h) and (1) 
require trainers to be certified but there is no authority for those training them to be. 

12 NCAC 7D .1301, .1302, .1303, .1304, .1305, .1306, and .1307: JUSTICE/NC Private Protective Services Board - The 
Commission objected to each of the .1300 rules due to lack of statutory authority and also to .1301 and .1302 due to lack of necessity 
and to .1304 and .1305 due to ambiguity. There is no authority cited for requiring continuing education for licensees. Conversely 
G.S. 74C-9(f) allows renewal upon payment of the proper fee and evidence of insurance. In addition, .1301 is not necessary because 
it has no requirements. In .1302, the term "accredited sponsor" is not used in the rules and thus does not need defining. In .1304(c) 
and .1305, it is not clear what standards the Board will use in determining if a course will be sanctioned. 

15A NCAC IN .0403: DENR - The Commission objected to this rule due to ambiguity. In (1), it is not clear what standards the 
division will use in requiring business plan submittal. 



13:12 NORTH CAROLINA REGISTER December IS, 1998 1005 

mm i Biiiiiiiiiiir'Minmimmnn iiiiiii ii iiiiiiii i i n iiiiiiiiiiiiii i iif r i fl fn n i vii i MH »f ii i Ft i w ii FfiwrtHii T «m f HW ' MMii<<i»«i'tHji^^ 



RULES REVIEW COMMISSION 



1 5 A NCAC IN .0604: DENR - The Commission objected to this rule due to ambiguity. The rule states that points may be awarded 
in both Items (1) and (2), but Item (2) states that points may be awarded if not awarded in (1). This is contradictory and thus 
ambiguous. 

15A NCAC IN .0701 : DENR - The commission objected to this rule due to ambiguity. In (c)(4), it is not clear what standards the 
division will use in setting capacity development requirements. 

I5A NCAC IN .0703: DENR - The Commission objected to this rule due to ambiguity. In (1), it is not clear what standards the 
receiving agency (Division of Environmental Health) will use in approving loan commitment decreases. 

1 5 A NCAC 10: DENR - These rules were withdrawn by the agency. 

15A NCAC 2D .1208: DENR/Environmental Management Commission - The Commission objected to this rule due to ambiguity. 
In (a)(3)(A)(ii), it is not clear what standards the Administrator will use in waiving requirements. 

1 5A NCAC 3P .0202: DENR/Marine Fisheries Commission - The Commission objected to this rule due to ambiguity. It is imclear 
what constitutes "undisputed facts" in the context of a request for a declaratory ruling in (b), (b)(1), (d), (f)(1), and (g)(3). 

ISA NCAC 8G .0401, .0402, .0403. .0404, .0405, .0406. .0407, and .0409: DENRAVater Pollution Control Systems Operators 
Certification Commission - The Commission objected to .0401 through .0409 due to lack of statutory authority and ambiguity. It is 
unclear what standards the Commission will use for approving the training programs in (b)(1). If the standards are not in the rules 
there is no authority to set those standards outside rulemaking. In .0409, it is also unclear what standards the Commission will use 
in determining whether to require training. This appears to be a slight variation on the waiver theme, but that is not abundantly clear 
to this reviewer. 

15A NCAC 8G .0505 and .0802: DENRAVater Pollution Control Systems Operators Certification Commission - The Commission 
objected to .0505 and .0802 due to ambiguity. In .0505(d) the first sentence seems to say that all scores are final and will not be 
changed. The last sentence states that exams shall be regraded if an "error is found in the examination." The rule is not clear as to 
what is going on. Does it mean that grades will not be changed if the error is that a correct answer was not properly credited but will 
be changed if the error was in the question itself? In .0802 the rule is unclear about the delegation of authority; the roles of the 
Commission, chairman, and advisory committee; and the appellate path to follow. 

I5A NCAC 8G .0902: DENR/Water Pollution Control Systems Operators Certification Commission - The Commission objected 
.0902 due to lack of statutorv' authority. There is no authority to set reporting requirements outside rulemaking as set out in (6). 

I5A NCAC 8G .1001: DENR/'Water Pollution Control Systems Operators Certification Commission - This rule was withdrawn by 
the agency. 

I5A NCAC 8G .1102: DENR/Water Pollution Control Systems Operators Certification Commission -This rule was withdrawn by 
the agencN. 

21 NCAC 46 .1612: NC Board of Pharmacy - The Commission objected to this rule due to lack of statutory authorit>'. There is no 
authority cited for the late renewal fee. G.S. 1508-19(5) is not sufficient authorit\. Note that the agency did not attempt to 
specifically characterize the late renewal fee as any of the five listed general fees allowed by 1508-19(5). 

21 NCAC 46 .2306: NC 8oard of Pharmacy - The Commission objected to this rule due to lack of statutory authority. This rule does 
not appear to be consistent with the statute. It seems to expand the universe of those to whom the prescription information is 
available. 

21 NCAC 46 .2502: NC Board of Pharmacy - The Commission objected to .2502 due to lack of statutop.' authority and ambiguit}'. 
In (g) there appears to be an exception or waiver of the rule forbidding serving as pharmacist-manager at more than one pharmacy. 
However there are no specific guidelines for the Board's consideration. Paragraphs (k) - (m) are ambiguous. Paragraph (1) especially 
is not clear about what the Board shall or shall not do under the circumstances. These paragraphs should be reviewed and perhaps 
rewritten to make clear what danger the Board is addressing; the solution it requires; and the need to be sure that the rules do not 
conflict with, or mislead someone about the effect of. the conduct of a civil lawsuit in any action over the dispensing or delivery of 
a product by a pharmacist. 

21 NCAC 46 .2506: NC Board of Pharmac\' - This rule was withdrawn by the agency. 



1006 NORTH CAROLINA REGISTER December 15, 1998 13:12 



RULES REVIEW COMMISSION 



21 NCAC 46 .2609: NC Board of Pharmacy - The Commission objected to this rule due to lack of statutory authority and ambiguity. 
There does not appear to be any authority cited to allow the board to test whether such a supplier has "a working knowledge of the 
services provided and how they relate to each patient's goals." The authority cited is limited to require these providers to deliver the 
equipment in a certain manner. As long as that is done, i.e., the rules for dispensing or delivering this equipment are followed, then 
the supplier's knowledge is irrelevant and beyond the scope of the board's authority to test. In the alternative, even if the board has 
th?r authority to test such knowledge, what constitutes this "working knowledge" is vague and undefmed. In addition the Commission 
is not sure about the necessity for this rule. The only authority cited for this rule refers to dispensing or delivering "devices" or 
"medical equipment" including certain rehabilitation equipment. It is unclear to me whether this rule purports to regulate more than 
the items mentioned in the definition of medical equipment. As long as it does not there is no problem with the authority. But then 
it is unclear what the interplay is between this rule and the next one for your review covering all medical equipment. This latter 
problem is probably easily addressed by adding a provision that this rule, and not .26 1 1 , covers the delivery of rehabilitation 
equipment, or specifying what parts of .26 1 1 also apply. But imtil that is done, this rule is imclear to me. 

21 NCAC 46 .261 1: NC Board of Pharmacy - The Commission objected to this rule due to lack of statutory authority and ambiguity. 
This rule presents one of the same problems as the previous rule. There does not appear to be any authority cited to allow the board 
to test whether such a supplier has "a working knowledge of the services provided and how they relate to each patient's goals." The 
authority cited is limited to require these providers to deliver the equipment in a certain manner As long as that is done, i.e., the rules 
for dispensing or delivering this equipment are followed, then the supplier's knowledge is irrelevant and beyond the scope of the 
board's authority to test. In the alternative, even if the board has the authority to test such knowledge, what constitutes this "working 
knowledge" is vague and undefmed. 

21 NCAC 57A .0305: NC Appraisal Board - The Commission objected to this rule due to lack of statutory authority and necessity. 
There is no authority to require people not to talk about the exam's contents. The exam would appear to be a public record and as 
such available to the public. Even if it were not a public record it would seem that it would not have been the legislature's intent to 
allow the agency to forbid this activity and thus is unnecessary. Finally, it certainly appears to be a first amendment violation, 
although that is not a basis for objecting to it. However it would be a good reason for the agency to withdraw it. Note that the agency 
has extremely broad authority to adopt rules concerning the qualifications of its licensees, but this is not a qualification rule. The 
authority would lie in the legislature's broad grant of power to adopt rules "reasonably necessary to implement, administer, and 
enforce the provisions of this Chapter..." (G.S. 93E-1-10) including the administration of exams (G.S. 93E-l-6(c)). 

COMMISSION PROCEDURES AND OTHER MATTERS 

The President Pro Tempore of the Senate has appointed two new Commissioners - John Arrowwood and Laura Devan. Teresa 
Smallwood was reappointed. No appointments have been made by the Speaker. Elections will be postponed until the January 
meeting. 



The next meeting will be on December 17, 1998. 

The meeting adjourned at 1 1 :55 a.m. 

Respectfully submitted, 
Sandy Webster 



13:12 NORTH CAROLINA REGISTER December IS, 1998 1007 

t mimiuuimmm\m\vmm»'wm m 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Lcr,\- Judge decisions along ^\-ith an index 
to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. Copies of the 
decisions listed in the index and not published are available upon request for a minimal charge by contacting the Office of 
Administrative Hearings. (919) '33-2698. Also, the Contested Case Decisions are a\-ailable on the Internet at the follow ing 
address: http: 'w-ww:state.nc.us'OAH''hearings/ decision caseindex.htm. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief .Administrative Law Judge 

JULIAN MANN, III 

Senior Administrative Law Judge 

FRED G. MORRISON JR. 

ADMINISTRATIVE LAW JUDGES 



Brenda B. Becton 
Sammie Chess Jr. 
Beecher R. Gray 
Melissa Owens 



Meg Scott Phipps 

Robert Roose\elt Reilh Jr. 

Dolores O. Smith 



AGENO 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Be\erage Control Commission v KenneUi Jerome 
Alcoholic Beverage Control Commission \ Jesse Jacob Josner, Jr 
Alcoholic Beverage Control Commission v Trade Oil Company. Inc 
Alcoholic Be\ erage Control Commission \ Pantana Bobs. Inc 
Alcoholic Be\ erage Control Comm \ Partnership T .A C & J's Shipwreck 
Alcoholic Be\ erage Control Commission v .Axis Entertainmem 
Sokha Huor Ramadneh v .Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v Delores W'ilhams .Alnaqib 
.Alcoholic Beverage Control Commission \ .Axis Entertainment 
.Alcoholic Beverage Control Commission v James .Aubrey Stephenson 
.Alcoholic Beverage Control Commission \ Bndgette Dee Williams 
.Alcoholic Be\ erage Control Commission \ Robert Lee. Inc 
.Alcoholic Beverage Control Comm v Partnership. T/.A Vanely Pic Up *21 
Tarus Jackson \ .Mcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm v Simple Elegance Restaurants. Inc 
.Alcoholic Beverage Control Comm \ Daniel Hinton Green 
.'\lcoholic Beverage Control Comm v Zaheer .Ahmad Bajw^ 
.Alton Ollivierra Perry \ .Alcoholic Beverage Control Commission 

BOARD OF CONTR.\CTORS 

Heritage Pointe Builders. Inc & Pamck Hannon v Bd of Contractors 

CRIME CONTROL ANT) PLBLIC SAFETY 

Loretta Battle v Crime Victims Compensation Commission 
Cynthia .Austin v Crime Victims Compensation Commission 
Marcella Skaggs v Crime Victims Compensation Commission 
Talmadge E McHenr. \ Cnme Victims Compensation Commission 
Linda Calduell Wiggins v Crime Victims Compensation Commission 
Kenneth T Lytle v Crime Victims Compensation Commission 
Shirley Henr\hand v Cnme Victims Compensation Commission 
Brenda Jean Thomas \ Cnme Victims Compensation Commission 
Tareyton L Johnson \ Cnme Victims Comf>ensation Commission 
Mia Thompson-Clark \ Cnme Victims Compensation Commission 
Godfrey .Akenaborv Cnme Victims Compensation Commission 
Valine H Thompson v Cnme Victims Compensation Commission 
Rufus K- Williams v. Department of Cnme Control &. Public Safers 



CASE 




D.ATE OF 


PUBLISHED DECISION 


NTMBER 


ALJ 


DECISION 


REGISTER CITATION 


97 .ABC 1205 


Phipps 


07/23/98 




97 .ABC 1438 


Phipps 


06/19/98 




98 .ABC 0033 


ReilK 


08/21, '98 




98 .ABC 0293 


Reilllv 


09/17/98 


13:11 NCR 933 


98 .ABC 0296 


Momson 


08/19/98 




98 .ABC 0357*' 


Reillv 


07/02/98 




98 .ABC 0382 


Smith 


06/30/98 


13:03 NCR 350 


98 ABC 0392 


Chess 


07/30/98 




98 .ABC 0401*' 


Reillv 


07/02/98 




98 ABC 0494 


Chess 


09/01/98 




98 .ABC 0501 


Reillv 


08/11/98 




98 .ABC 05 18 


Gra\ 


08/11/98 




98 .ABC 07 14 


Momson 


10/09/98 




98 .ABC 0768 


Smith 


07/13,'98 




98 .ABC 0850 


Phipps 


10/26/98 




98 ABC 0889 


Momson 


11, '06/98 




98 ABC 0960 


Owens 


10/30/98 




98 ABC 1298 


Owens 


11/23/98 




97 LBC 0243 


Phipps 


08/17/98 




97 CPS 0654 


Gra\ 


08/10/98 




97CPS 1499 


Reillv 


08/12/98 


13:05 NCR 533 


98 CPS 0065 


Ouens 


06/05/98 




98 CPS 01 16 


Gra\ 


06/24/98 




98 CPS 0153 


Chess 


08/27/98 




98 CPS 0176 


Reilh 


07/06/98 




98 CPS 0263 


Momson 


08/11/98 




98 CPS 0314 


Momson 


08/11/98 




98 CPS 0327 


Reilh 


09/02/98 




98 CPS 0349 


Chess 


05/14/98 




98 CPS 0427 


Owens 


10/30/98 


13:12 NCR 1015 


98 CPS 0674 


Momson 


11/18/98 




98 CPS 0676 


Momson 


10/23/98 





1008 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



CONTESTED CASE DECISIONS 



AGENCY 

Faye E Powell v Cnme Victims Compensation Commission 
Hubert Lee Grant v Crime Victims Compensation Commission 
Marv' Elizabeth Troutman v Cnme Victims Compensation Comm 
Brenda H Alston v Cnme Victims Compensation Commission 
Shirley P Chen v Crime Victims Compensation Commission 

ENGINEERS AND SmVEYORS, BOARD OF EXAMINERS FOR 

Thomas A- Truelove. Jr, PE v. Bd /Examiners/Engineers and Surveyors 

ENVIRONMENT AND NATliRAL RESOIUCES 

Ladane Williamson and Odell Decarol Williamson v DENR 
Teresa Heflin v Department of Environment and Natural Resources 
Ronald Prater v Department of Environment and Natural Resources 
James F Smith v Department of Environment and Natural Resources 
William Hickman v Department of Environment and Natural Resources 
Hickory Alliance V- Department of Environment and Natural Resources 
and 

Godfrey Lumber Company. Inc. 
John M Silvia v Department of Environment and Natural Resources 
Godfrey Lumber Company. Inc. v. Dept./Environmem & Natural Resources 
and 

Hickory Alliance 
Gregory B Jackson. Brenda R Jackson v Greene Cty HIth Dept . ENR 
Robert G Goff. Sr v Department of Environment and Natural Resources 
Scotland Water. Cedar Circle v Environment and Natural Resources 
Womble & Company v Dept of Environment and Natural Resources 
Enc Glenn Harrison v Environment and Natural Resources 
Robert G Goff. Sr v Department of Environment and Natural Resources 
Wilbur E Earp v Department of Environment and Natural Resources 
Norell Bahrs v Carteret Cty Health Dept . DENR 
Charles Davis v Department of Environment and Natural Resources 

Division of Coastal Management 

Preston Warren v Division of Coastal Management, Wilmington. NC 

Division of Environmental Health 

Gerald P Sigal v. DENR. Division of Environmental Health 

Division of Environmental Management 

Save Our Rivers. Inc . et al v Town of Highlands. EHNR. Env Mgmt . 

William W Cobey. Jr . Secretary 
US Dept. of the Interior Nat'l Park Svce v Environmental Mgmt Comm 

Division of Marine Fisheries 

Lady LaShanda Melvin Bryant v EFTNR. Division of Marine Fishenes 
Gerald Moore, et al v DENR. Division of Marine Fishenes 

Division of Solid Haste Management 

Steve Aldridge. et al v DENR. Division of Solid Waste Management 

Division of Hater Quality 

Raymond L Martin v DENR. Division of Water Qualitv 

Worsley Oil Companies, Inc \ DENR. DWQ. Groundwater Section 

Silver Bullet. Inc v. DENR, Division of Water Quality 

HEALTH AND HUMAN SER\ ICES 

Stanley C Ochulo \ Off/Administrative Hearings, Mr R Marcus Lodge 

Oliver C Johnson. Hazel T Johnson v Health and Human Services 

Louise Streater v Health and Human Services 

Richard E Lawrence. Rebecca A Laurence v Health and Human Services 

John David Bnnson \ Department of Human Resources 

Stephanie Wade \ Department of Health and Human Services 

Caroly n L Freeman v Department of Human Resources 

Otis L Mack. Jr v Office of Administrative Hearings 

Chnstopher Germane. Lee Germano \ Department of Health 

E Jean Woods v EDS - Medicaid 

Cheryl Lynn Staton v Department of Health & Human Services 

Mary Bamer v Administrative Hearing 

Division of Child Dex'elopment 

Dulatown Presbylenan Children's Ctr v DHHS, Child Development 
Cassandra Myers v Division of Child Development 
Dulatown Presbylenan Children Ctr v DHR. Child Development 
Dora's Child Development Center v Mecklenburg Ct\ DSS. and DHR 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


AU 


DECISION 


REGISTER CITATION 


98 CPS 0808 


Owens 


08/28/98 






98 CPS 0839 


Morrison 


10/21/98 


13:10NCR 


853 


98 CPS 0901 


Smith 


11/12/98 






98 CPS 0952 


Phipps 


11/10/98 






98 CPS 1015 


Phipps 


09/17/98 






98 ELS 0O47 


Mann 


11/12/98 


13:12 NCR 


1035 


96EHRI926 


Gray 


09/01/98 


13:07 NCR 


609 


97 EHR 0409 


Morrison 


07/29/98 






97EHR0451 


Reillv 


07/02/98 






97 EHR 1365 


Chess 


07/17/98 






97 EHR 1388 


Gray 


11/06/98 


13:11 NCR 


928 


97 EHR 1607 


Reilly 


07/17/98 






97 EHR 1646 


Chess 


06/03/98 






97 EHR 1676 


Reilly 


07/17/98 






98 EHR 0042 


Reilly 


07/02/98 






98 EHR 0072*= 


Gray 


06/25/98 






98 EHR 0236 


Smith 


06/09/98 






98 EHR 0345 


Chess 


11/05/98 






98 EHR 0373 


Reilly 


08/28/98 






98 EHR 0448'- 


Gray 


06/25/98 






98 EHR 0606 


Smith 


10/21/98 






98 EHR 0884 


Owens 


11/02/98 






98 EHR 0890 


Owens 


11/09/98 






98 EHR 0177 


Phipps 


10/05/98 






98 EHR 0051 


Smith 


10/02/98 






91 EHR 0377 


Gray 


07/30/98 






98 EHR 0410 


Smith 


08/20/98 


13:06 NCR 


578 


97 EHR 1459 


Gray 


07/20/98 






98 EHR 0322 


Owens 


10/08/98 


13:09 NCR 


797 


98 EHR 0665 


Chess 


09/09/98 


13:07 NCR 


617 


98 EHR 0590 


Gray 


09/21/98 






98 EHR 0735 


Chess 


08/24/98 






98 EHR 0931 


Chess 


08/20/98 






98 DHR 0021 


Reillv 


06/24/98 






98 DHR 0090 


Gray 


07/08/98 






98 DHR 0196 


Gray 


06/03/98 






98 DHR 0209 


Phipps 


07/15/98 






98 DHR 0369 


Owens 


08/1 7/98 






98 DHR 0666 


Reilly 


08/19/98 






98 DHR 0721 


Gray 


08/05/98 






98 DHR 0729 


Phipps 


09/09/98 






98 DHR 0780 


Owens 


07/28/98 






98 DHR 1118 


Gray 


10/26/98 






98 DHR 1259 


Smith 


11/30/98 






98 DHR 1287 


Chess 


11/19/98 






98 DHR 0654 


Gray 


08/06/98 






98 DHR 0948 


Owens 


09/03/98 






98 DHR 1112 


Morrison 


10/16/98 






98 DHR 1 1 84 


Phipps 


09/25/98 







13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



1009 



BnmmyBiii i iMiiiDiHiiiHMii i i i jaM 



CONTESTED CASE DECISIONS 



AGENO 



CASE 
NLnVlBER 



ALJ 



DATE OF 
DECISION 



Pl^BLISHED DECISION 
REGISTER CITATION 



Division of Facility Services 

Pearlie W Lawson v DHHS, Facility Svcs . Health Care Personnel Reg 
Annie K Morgan v Health & Human Services , Facility Services 
Mooresville Hospital Mgmt Associates, Inc d/b/a Lake Norman Regional 

Medical Center \ DHR. Facility' Services, Certificate of Need Section 
and 

Autumn Corporation and McKinley V Jumey 
Warren Moore & Catherine Moore v DHR. Div of Facility Services 
Constellation Health Services. Inc and Constellation Senior Services, 

Inc V DHR. Facility Ser\ ices. Group Care Licensure Section 
and 

Diversified Health Group, LLC and The Innovative Health Group, Inc 
Dialysis Care of NC, LLC. d/b/a Dialysis Care of Rowan County 

V DHR, Division of Facility Services. Certificate of Need Section 

v Biomedical Applications of NC. Inc d/b/a BMA of Kannapolis d/b/a 

Metrolina Kidney Center of Kannapolis (Lessee) and Metrolina Nephrology 

Associates. PA (Lessor) 
Robin Annette Reavis v Health and Human Svcs . Div of Facility Svcs, 
Jennifer Blofeld v DHHS. Facility Svcs . Health Care Personnel Registry 
Sunlile Retirement Home. Winnie Jane Johnson v DHR. Facility Services 
Helen Shokoti v Health and Human SerMces. Div of Facility Services 
Ann Davis Rest Home v Group Care Licensure Section 
Diane Lingard v DHR. Facility Svcs. Health Care Personnel Reg 
Kimberly Annette Smith Hull \ DHHS, Division of Facility Services 
Living Centers-Southeast. Inc . Lutheran Retirement Center-Wilimington. 

Inc . and New Hanover Health Care Center. LLC v. DHHS. Div of 

Facility Sen. ices. Certificate of Need Section, 
and 
Devin Partnership and Devin Health Care Associates, L L C , Columbia 

Cape Fear Healthcare System, Limited Partnership, Living Centers 

Southeast, Inc , Lutheran Retirement Center-Wilmington Inc , and 

New Hanover Health Care Center LLC 
Living Centers-Southeast, Inc , Lutheran Retirement Center-Wilimington, 

Inc , and New Hanover Health Care Center. L L C v DHHS. Div of 

Facility Sen. ices. Certificate of Need Section, 
and 
Devin Partnership and Devin Health Care Associates. L L C . Columbia 

Cape Fear Healthcare System. Limited Partnership. Living Centers 

Southeast. Inc . Lutheran Retirement Center-Wilmington Inc . and 

New Hanover Health Care Center L L C 
Living Centers-Southeast. Inc . Lutheran Retirement Center-Wilimington. 

Inc . and New Hanover Health Care Center. L L C v DHHS. Div of 

Facility Serv ices. Certificate of Need Section, 
and 
Devin Partnership and Devin Health Care Associates, L L C , Columbia 

Cape Fear Healthcare System. Limited Partnership. Living Centers 

Southeast. Inc . Lutheran Retirement Center-Wilmington Inc . and 

New Hanover Health Care Center LLC 
Deborah Ann Holt v DHHS. Division of Facility Services 
Tern Michelle Tyler v Health & Human Svcs. Div of Facility Services 
Dons Jones Holmes \ DHHS. Facility Svcs. Health Care Personnel Reg 
Annie K Morgan v Health & Human Senices . Facility Sen ices 
Shirlev Bowling v DHHS. Facilitv Sen ices. Health Care Personnel Reg 
Johnnie E Williams v DHHS. Division of Facility Senices 
Christy Jeton Hall v DHHS. Division of Facility Senices 
Latonia Denise Thomas v DHHS, Division of Facility Senices 
Tracey Deirde Galloway v DHHS. Facility Svcs , Health Care Per Reg 
Happy Dan's Home. Gladys Cooke v Facility Svcs . Group Care Lie Sect 
Rose Mane Hadlev v DHHS. Division of Facility Senices 

Division of Medical Assistance 

Charlotte-Mecklenburg Hospital Authority, d/b/a Carolinas Medical Ctr. 
and Harry Mahannah. M D v DHHS. Division of Medical Assistance 
Alic F Schneider. Julia R Hammonds v DHHS. Medical Assistance 

Division of Social Services 

William & Crvstal Steakley v DHHS. Division of Social Senices 

Raji Abdus-Salaam v Department of Human Resources. DSS-DCA 

Child Support Enforcement Section 
Robert H Black v Guilford County Child Support Enforcement 
Dorman E Drake v Department of Human Resources 
Garry R McNeill v Department of Human Resources 
Robert .Alan Davis v Department of Human Resources 



97 DHR 1034 
97 DHR 1046* 
97DFiR 1209 



97 DHR 1279 
97 DHR 1529 



97 DHR 1588 



Becton 
Phipps 
Reilly 



Mann 
Gray 



Phipps 



98 DHR 0245*" Phipps 



98 DHR 0247*'- Phipps 



07/30/98 
07/23/98 
06/23/98 



09/08/98 
06/24/98 



08/31/98 



97 DHR 1672 


Reilly 


08/12/98 


98 DHR 0096 


Grav 


08/21/98 


98 DHR 0124 


Phipps 


06/11/98 


98 DHR 01 73 


Chess 


08/26/98 


98 DHR 0197 


Phipps 


06/23/98 


98 DHR 02 14 


Becton 


06/22/98 


98 DHR 0239 


Phipps 


06/23/98 


98 DHR 0244*" 


Phipps 


11/24/98 



11/24/98 



11/24/98 



98 DHR 0348 


Phipps 


06/22/98 


98 DHR 0458 


Gra\ 


08/21/98 


98 DHR 0463 


Grav 


08/21/98 


98 DHR 0496*' 


Phipps 


07/23/98 


98 DHR 0547 


Grav 


11/09/98 


98 DHR 0639 


Reilly 


07/02/98 


98 DHR 0706 


Grav 


10/12/98 


98 DHR 0809 


Grav 


10/23/98 


98 DHR 0824 


Grav 


09/24/98 


98 DHR 0885 


Owens 


11/19/98 


98 DHR 0970 


Smith 


10/08/98 


97 DHR 0621 


Smith 


07/08/98 


98 DHR 0994 


Mortison 


10/29/98 


98 DHR 0076 


Grav 


07/20/98 


98 DHR 0771 


Owens 


07/30/98 


96CRA 1548 


Mann 


10/09/98 


96CRA 1717 


Smith 


08/25/98 


96 CRA 1 743 


Reillv 


10/22/98 


96CR.A 1781*" 


Phipps 


08/20/98 



I3:I2NCR I0I8 



I3:12NCR I0I8 



13:12NCR 1018 



1010 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



CONTESTED CASE DECISIONS 



AGENCY 

Michael W. White v Department of Human Resources 

Troy R Emmons. Jr v Department of Human Resources 

Marvm A Pike v Department of Human Resources 

Mar\' Putnam Aver. \' DSS. Durham Count\ Child Support Enforcement 

Gilbert G Gra\ v Department of Human Resources 

Herbert Leon Sellers v Department of Human Resources 

David W Da\is v Department of Human Resources 

DaleW Hutchinson V Department of Human Resources 

Joe A LvTich v Department of Human Resources 

Kenneth Eugene Scott v Department of Himian Resources 

Mark Owens Fnnk v Department of Human Resources 

Jeffer\ Lee Graves v Department of Human Resources 

Donald L Carr. Jr v Department of Human Resources 

Marvm Diggs \ Department of Human Resources 

Michael Patrick D\me v Department of Health & Human Services 

Sherman L Arnold Sr v Department of Health & Human Services 

Dennis Lee McNeill v Department of Human Resources 

BvTon O Ashbv II v Department of Human Resources 

Hubert L. Morrison v Department of Human Resources 

Robert Alan Davis v Department of Human Resources 

Larrs S Robinson v Child Suppon Enforcement Agency 

Darryl C Thompson v Department of Health & Human Services 

Darrs 1 C Thompson v Department of Health & Human Ser\ices 

Michael Anthony Hill v Department of Human Resources 

Joseph L Hill v Department of Human Resources 

Michael A Wilder v Department of Human Resources 

Billy Anthony Jr v Department of Human Resources 

Lawrence Wilkes v Department of Human Resources 

Alton D Bagley v Department of Human Resources 

Bemel B Beny Jr v Depanment of Human Resources 

Darryl Simpkins v Department of Health & Human Ser\'ices 

AnthonN Montgomery v Department of Human Resources 

Joseph Gerard McPhillips \' Department of Human Resources 

Terr\ Letterman v Department of Human Resources 

William E Mines v Department of Human Resources 

Chnstopher Alan v Department of Human Resources 

Annette Chipman v Department of Human Resources 

Paul J Mobley. Jr v Department of Human Resources 

Alvin G Piper \ Depanment of Health & Human Services 

Robert A Shererv Department of Human Resources 

Rodney A Momson v Department of Human Resources 

Gregors Andre Broun \ Department of Health & Human Services 

Rodger Hazen II v Department of Human Resources 

Wade A Burgess v Depanment of Human Resources 

Robert L Robinson v Depanment of Human Resources 

Jamie A Hunt v Depanment of Health & Human Serxices 

Renardo Jenkins v Depanment of Human Resources 

Anthon> Love v Department of Human Resources 

Steven Kent Gold v Depanment of Human Resources 

Lero\' J Poole \ Department of Human Resources 

Hoyal A McLean v Department of Health & Human Services 

Michael Bernard Hill v Department of Health & Human Senices 

Charlie Ratliff Jr v Department of Health & Human Services 

Donald W Lee v Department of Health & Human Services 

Bobby D Cook v Department of Health & Human Services 

John B Hall v Department of Human Resources 

Demck A Brinton \, Department of Human Resources 

Tabatha D Pate v Department of Human Resources 

Amanda F Blount v Department of Human Resources 

Gregop. Carty (I V # 1 564206 ) v Department of Human Resources 

Gregorv Carty (IV#1564166) v Depanment of Human Resources 

John L Bullard v Depanment of Human Resources 

Frank A Cotton v Departmemof Human Resources 

Charlie Gray Hunt Jr v Department of Human Resources 

Willie R Cruse V Department of Health & Human Services 

Thomas H Lotze, Jr \ Department of Health & Human Senices 

Robert L Williams v Depanment of Human Resources 

Patrick Bass v Department of Health & Human Services 

Tawanna Wheeler \ Department of Health & Human Services 

Timothy Kinney v Depanment of Health & Human Services 

Teresa L Gallowa\ v Depanment of Health & Human Services 

Michael A Looper v Department of Health & Human Services 

Kenneth E Strickland v Department of Health & Human Services 

Ho\1 H Bunt Jr v Department of Health & Human Services 



CASE 




DATE OF 


NtMBER 


ALJ 


DECISION 


96CRA 1784 


Gray 


09/25/98 


96CRAI798 


Reilly 


08/25/98 


96CRA 1814 


Chess 


09/24/98 


96CRA 1849 


Mortison 


09/01/98 


96CRA 1858 


Momson 


10/08/98 


96CRA1932 


Smith 


11/06/98 


96CRA 1976 


Smith 


11/06/98 


96CRA 1981 


Mann 


08/26/98 


97 CRA 0045 


Phipps 


10/09/98 


97CRA1232 


Chess 


11/06/98 


97 CRA 1524 


Mann 


10/09/98 


98 CRA 0137 


Becton 


06/23/98 


98 CRA 0545 


Reillv 


06/08/98 


98 CRA 0588 


Reilly 


06/24/98 


98 CRA 0787 


Gray 


09/1 7/98 


98 CRA 1152 


Mann 


10/28/98 


96CSE1305 


Gray 


06/22/98 


96CSE1435 


Mann 


07/15/98 


96CSE1649 


ReilK 


08/12/98 


96CSE 1780»' 


Phipps 


08/20/98 


96CSE1848 


Gray 


11/05/98 


96CSE1854'" 


Chess 


09/01/98 


96CSEI902*" 


Chess 


09/01/98 


96 CSE 2028 


Mann 


08/26/98 


97 CSE 0624 


Chess 


11/06/98 


97 CSE 1301 


Chess 


07/17/98 


97 CSE 1393 


Reilly 


06/24/98 


97 CSE 1419 


Gray 


11/17/98 


97 CSE 1424 


Chess 


06/02/98 


97 CSE 1435 


Smith 


06/12/98 


97 CSE 1436 


Chess 


08/11/98 


97 CSE 1442 


Phipps 


06/17/98 


97 CSE 1467 


Mann 


10/09/98 


97 CSE 1492 


Smith 


06/22/98 


97 CSE 1527 


Mann 


09/08/98 


97 CSE 1544 


Chess 


10/16/98 


97 CSE 1545 


Phipps 


07/23/98 


97 CSE 1568 


Phipps 


06/1 7/98 


97 CSE 1599 


Phipps 


11/10/98 


97 CSE 1605 


Mann 


07/15/98 


97 CSE 1611 


Gray 


10/23/98 


97 CSE 1656 


Gray 


08/27/98 


97 CSE 1666 


Chess 


07/17/98 


98 CSE 0071 


Momson 


06/12/98 


98 CSE 0130 


Reilly 


07/15/98 


98 CSE 0307 


Momson 


07/06/98 


98 CSE 0310 


Smith 


06/23/98 


98 CSE 03 12 


Phipps 


06/23/98 


98 CSE 0333 


Momson 


07/01/98 


98 CSE 0375 


Reilly 


07/02/98 


98 CSE 0420 


Smith 


07/29/98 


98 CSE 0421 


Becton 


07/15/98 


98 CSE 0449 


Mann 


07/15/98 


98 CSE 0469 


Gray 


11/09/98 


98 CSE 0483 


Reilly 


10/06/98 


98 CSE 0506 


Chess 


07/20/98 


98 CSE 0555 


Smith 


08/07/98 


98 CSE 0556 


Becton 


06/23/98 


98 CSE 0560 


Chess 


07/29/98 


98 CSE 0561 •■' 


Phipps 


09/23/98 


98 CSE 0562*" 


Phipps 


09/23/98 


98 CSE 0569 


Momson 


08/06/98 


98 CSE 0578 


Gray 


10/08/98 


98 CSE 0607 


Smith 


06/22/98 


98 CSE 0653 


Mann 


08/26/98 


98 CSE 0658 


Phipps 


08/31/98 


98 CSE 0682 


Smith 


06/22/98 


98 CSE 0689 


Owens 


09/18/98 


98 CSE 0691 


Owens 


10/09/98 


98 CSE 0728 


Smith 


09/17/98 


98 CSE 0769 


Becton 


07/30/98 


98 CSE 0783 


Chess 


09/08/98 


98 CSE 081 7 


Mann 


09/08/98 


98 CSE 0818 


Momson 


09/15/98 



Pl'BLISHED DECISION 
REGISTER CITATION 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



1011 



mmsimmMUS BSBm 



CONTESTED CASE DECISIONS 



AGENCY 

Vemon Reginald Pinkney v. Department of Health &. Human Sen ices 

Elijah G Deans v Department of Health & Human Services 

James Howard Alexander \ Department of Health & Human Services 

Lee J Coggms V Department of Human Resources 

Mark J Houlbrook \ Department of Health & Human Ser\ices 

Henr. A Hamel. Jr v Depanment of Health & Human Services 

Amanda F Haviland Blount \ Department of Health & Human SerMces 

Deniira Jeffries v Department of Health & Human Services 

Brvan L Barksdale \ Department of Health & Human Services 

Karen Mitchell v Depanment of Human Resources 

Roben S Willett v Department of Health & Human Ser\ices 

Vickie E Lane V Michael L Adams. Department of Human Resources 

Carla P Robinson v Depanment of Human Resources 

Rachel D Farmer v Department of Health & Human Services 

Janice Scott Padgett (Fisher) v Department of Human Resources 

Barbara Fanta-Blandine \ Department of Human Resources 

Sharon Brim v Department of Health & Human Sen ices 

Sherr. L Hampton v Department of Human Resources 

Terita M Sharpe \ Department of Human Resources 

Ruth McFadden v Department of Human Resources 

Division of Women 's and Children 's Health 

K-hamis A Sirhan v DHHS. Women's/Children's Health. Nutntion Svcs. 
Joseph \ Nauas v DHHS. Women's/Children's Health. Nutntion Svcs. 
Mohamad I Rahman % DHHS. Womens/Childrens HIth. Nutr Svcs Sect 
E\el\Ti Powell v Nutntion Services Section 



JUSTICE 

James Todd Tippet \ 



NC Companv Police Program 



Alarm Systems Licensing Board 

Claude David Huggins \ .Alarm Systems Licensing Board 
Ja\ Michael RatclifTv .Alarm Systems Licensing Board 

Auctioneer Licensing Board 

Wilev R Tvndall v .Auctioneer Licensing Board 
Gavin Haviv .Abadi \ .Auctioneer Licensing Board 

Education and Training Standards Division 

Thomas Dwavne Brown \ Shenffs' Education & Training Standards Comm 
Kenneth Joseph Jackson v Shenffs' Education & Training Standards Comm 
Odis Fitzgerald Darden v Sheriffs' Education & Training Standards Comm 
Kenneth Earl Brantley v Cnminal Justice Ed & Training Stds Comm 
Hovie Kenneth Wise. Jr \ Shenffs' Education & Training Standards Comm 
Hearl Oxendine v. Criminal Justice Education & Training Stds Comm 
James Fanell Roberts v Criminal Justice Education & Training Stds Comm 
Phillip Keith McPherson v Shenffs' Education & Training Standards Comm 
Darvl LaMar Brvant v Shenffs' Education & Training Standards Comm 
Harold F Esters v Shenffs' Education & Training Standards Comm 
William Scott Key v Shenffs Education & Training Standards Comm 
Cecil W Duke. Jr v Cnminal Justice Education & Training Stds Comm 
Amado Martinez v Criminal Justice Education & Training Stds Comm 
Johnnv Wavne Wills \ Criminal Justice Education &. Training Stds Comm 
James E Ellerbe v ShentTs' Education & Training Standards Comm 
Paul Har\e\ Taylor v DOJ. Criminal Justice Ed & Training Stds Comm 
Kenneth Joseph Jackson v Sheriffs' Education & Training Standards Comm 
KelK Suzanne Ma\ berry \ Shenffs' Education & Training Stds Comm 
Robert R\an Hardison \ Sheriffs' Education & Training Standards Comm 
Tracev Jerome Clark \ Shenffs' Education & Training Standards Comm 
Kevin Lamar Dorse\ v Shenffs' Education & Training Standards Comm 
Willoughbv McCormick. Jr v Sheriffs' Ed &. Training Standards Comm 

Private Protective Services Board 

Wavne Care\ \ Pri\ ate Protects e Serv ices Board 
Claims Venl'ication. Inc \ Pnvate Protective Serv ices Board 
Walter R Shirerv Private Protective Services Board 
Stacev L Williams \ Private Protective Serv ices Board 
Eugene Norman Ganett \ Private Protective Services Board 
G Russell Smith \ Private Protective Services Board 
David C Brisson v F^vate Protective Senices Board 
Dannv Charles Garrett v Pnvate Protective Sen ices Board 
Dennis Ra\ Hvatt \ Private Protective Sen ices Board 
.Alfred D Malson v Pnvate Protective Senices Board 
Rodnev Hamilton Marsh v Pnvate Protective Senices Board 



CASE 




DATE OF 


PUBLISHED DECISION 


MMBER 


ALJ 


DECISION 


REGISTER CITATION 


98CSE0833 


Owens 


07/29/98 




98CSE0867 


Phipps 


07/20/98 




98 CSE 0869 


Reilly 


08/06/98 




98 CSE 0894 


Smith 


08/20/98 




98 CSE 0949 


Smith 


09/08/98 




98 CSE 0975 


Chess 


09/01/98 




98 CSE 0985 


Mann 


11/18/98 




98 CSE 1036 


Morrison 


09/15/98 




98 CSE 1052 


Morrison 


10/09/98 




98 CSE 1095 


Reilly 


10/06/98 




98 CSE 11 53 


Chess 


11/19/98 




96 DCS 2105 


Grav 


07/08/98 




97 DCS 0124 


Reilly 


11/10/98 




97 DCS 0251 


Phipps 


08/31/98 




97 DCS 1219 


Smith 


07/29/98 




97 DCS I486 


Morrison 


06/22/98 




97 DCS 1574 


Grav 


08/04/98 




98 DCS 0257 


Morrison 


12/01/98 




98 DCS 0468 


Momson 


06/09/98 




98 DCS 0675 


Reilly 


07/15/98 




98DHR02I9 


Reillv 


08/11/98 




98 DHR 0637 


Phipps 


07/02/98 




98 DHR 0923 


Chess 


11/06/98 




98 DHR 1135 


Smith 


11/13/98 




97 DOJ 1368 


Phipps 


09/1 0/98 




98 DOJ 0871 


Momson 


07/09/98 




98 DOJ 1345 


Owens 


11/19/98 




97 DOJ 1236 


Phipps 


07/24/98 




98 DOJ 1060 


Smith 


10/21/98 




97 DOJ 1319 


Phipps 


07/29/98 




97 DOJ 1578'* 


Grav 


08/20/98 




97 DOJ 1698 


Reilly 


06/12/98 




98 DOJ 0046 


Gray 


11/04/98 


13 11 NCR 935 


98 DOJ 0022 


Smith 


07/14/98 




98 DOJ 0121 


Smith 


06/22/98 




98 DOJ 0147 


Smith 


07/16/98 




98 DOJ 0388 


Reilly 


07/24/98 




98 DOJ 0430 


Gray 


07/21/98 




98 DOJ 043 1 


Grav 


08/21/98 




98 DOJ 0432 


Becton 


06/08/98 




98 DOJ 0479 


Chess 


1 0/07/98 




98 DOJ 0526 


.Momson 


09/09/98 




98 DOJ 0574 


Chess 


07/30/98 




98 DOJ 0600 


Momson 


08/07/98 




98 DOJ 0841 


Phipps 


09/16/98 




98 DOJ 0847*' 


Grav 


08/20/98 




98 DOJ 0875 


Chess 


11/13/98 




98 DOJ 0878 


Phipps 


09/08/98 




98 rXDJ 0879 


Owens 


08/31/98 




98 DOJ 0930 


Phipps 


09/22/98 




98 DOJ 1007 


Reilly 


10/13/98 




98 DOJ 0619 


Owens 


11/19/98 




98 DOJ 0848 


Smith 


08/04/98 




98 DOJ 0937 


Momson 


09/17/98 




98 DOJ 0938 


Momson 


08/18/98 




98 DOJ 0939 


Momson 


08/18/98 




98 DOJ 0940 


Owens 


11/19/98 




98 DOJ 0941 


Owens 


11/19/98 




98 DOJ 1081 


Momson 


09/17/98 




98 DOJ 1139 


Owens 


11/19/98 




98 DOJ 1141 


Momson 


09/29/98 




98 DOJ 1142 


Owens 


11/04/98 





1012 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



CONTESTED CASE DECISIONS 



AGENCY 

Melvin Eugene Davis v Private Protective Services Board 
Glen Leon Fitchette v Pnvate Protective Services Board 

!^BOR 

I ; :dreth Mechanical & Maintenance v Labor/Labor Standards 
Labor World, Enc Feinstein v Labor Harry E Payne, Jr 

BOARD OF MEDICAL EXAMINERS 

Joe D Crawford, M D v Medical Bd of NC Bd of Medical Examiners 

PIBLIC INSTRUCTION 

Linda & Danny Howard for Nikki Howard v DHHS, Murdoch Center 
George & Ruth Sinclair for Adam Sinclair v Wake County Schools 

(Special Education Services) 
Nicholas Eirschele, By and Through! His Parents, Charles & Kathleen 

Eirschele v Craven County Board of Education 
Dewitt Brinson & Elizabeth Brinson v Craven County Board of Education 
Gene Edward Lloyd v Department of Public Instruction 
Mrs Phyllis Y Moore v Cumberland County Schools 
Laney Bruce Harrill v State Board of Education 
L K on behalf of her son, J H , as well as on her own behalf v St Bd /Ed 
Joseph J Sarrerro v Department of Public Instruction 
M E and her husband, PE , individually, and on behalf of their son, C E 

V Bd of Ed. for Buncombe Cty a/k/a Buncombe Cty Public Schools, et al 
Linda & Danny Howard for Nikki Howard v Lenoir Cty Bd of Ed 

STATE BAR 

Linda R Sharp v North Carolina State Bar 

STATE PERSONISEL 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


98DOJ 1145 


Morrison 


09/22/98 


98 DOJ 1307 


Owens 


11/03/98 


98 DOL 0903 


Mann 


1 1/04/98 


98 DDL 1256 


Gray 


11/05/98 


98BME0870 


Owens 


07/30/98 


97 EDC 1047 


Gray 


11/03/98 


97 EDC 1233 


Phipps 


08/11/98 


97 EDC 1234 


Phipps 


07/16/98 


97 EDC 1298 


Phipps 


10/26/98 


98 EDC 01 10 


Reillv 


09/10/98 


98 EDC 0305 


Gray 


08/05/98 


98 EDC 0350 


Smith 


09/17/98 


98 EDC 0370 


Smith 


10/14/98 


98 EDC 0459 


Owens 


08/10/98 


98 EDC 0566 


Gray 


10/01/98 



PUBLISHED DECISION 
REGISTER CITATION 



98 EDC 1047 



98 BAR 1344 



Gray 



Morrison 



10/30/98 



11/09/98 



Depart meni of Correction 

Annie D Dizon v NC Correctional (Inst ) Center for Women 

Terry T Rees v Department of Correction 

Mohammad H Baloch, M D. v Department of Correction 

Leon Owens v Department of Correction 

Terry T Rees v Department of Correction 

Michael A Smith v Department of Correction 

Michael A Smith v. Department of Correction 

Jayne D Bledsoe v Correction, Div of Adult Probation & Parole 

Carl W Craven, II v Pender Correctional Institution 

Ervin Shaw v Martin Homer Asst Super . Corr . Sandy Ridge Corr Ctr. 

Joseph Szilagyi v Department of Correction 

Dennis S Harrell v Dept of Correction. Caledonia Correctional Institute 

Tommy L Hancock v Department of Correction 

Tommy L Hancock v Department of Correction 

Bertha Darden v Raymond Smith & Dept of Correction, Central Prison 

Ruth Moseley v Department of Correction 

Lamont M Burt \ Department of Correction 

Leo Powell v Harnett Correctional Institute, Department of Correction 

NonaW Hubbard v DOC, Division of Community Corrections 

Robert R Stovall v Department of Correction 

Crime Control and Public Safe!}' 

Roger D. Davis v. Crime Control & Public Safety, St. Hwy Patrol 
Albert R Little v Crime Control &. Public Safety, Info Sys Specialists 
Thomas E Carlton v Crime Control & Public Safety, St Hwy Patrol 

Employment Security Commission 

Jane B Bolin and Arlene G Sellers v Employment Security Commission 
Jane B Bolin and Arlene G Sellers v Employment Security Commission 

Environment and Natural Resources 

Charles Anthony Bruce v. ENR, Division of Parks and Recreation 

Health and Human Services 

Annette Honea v Department of Human Resources 
Angela M Miles v Cumberland County Department of Social Services 
Shung Fung-Chin v Department of Human Resources, Caswell Center 
Charity Swick v Cumberland County Department of Social Services 



97OSP0I66 


Mann 


11/06/98 


97 0SP1671*-' 


Smith 


06/30/98 


98 DSP 0014 


Gray 


09/01/98 


98 OSP 0050 


Becton 


07/10/98 


98OSP0II9»" 


Smith 


06/30/98 


98 OSP 023 1*" 


Reilly 


08/11/98 


98 OSP 0317*" 


Reilly 


08/11/98 


98 OSP 0543 


Owens 


07/29/98 


98 OSP 0633 


Smith 


06/25/98 


98 OSP 067 1 


Phipps 


10/09/98 


98 OSP 0757 


Owens 


10/05/98 


98 OSP 0846 


Morrison 


09/08/98 


98 OSP 0881 


Owens 


08/04/98 


98 OSP 0882 


Owens 


10/09/98 


98 OSP 0905 


Smith 


09/25/98 


98 OSP 1092 


Gray 


10/07/98 


98 OSP 1115 


Smith 


10/06/98 


98 OSP 11 75 


Owens 


11/25/98 


98 OSP 1214 


Owens 


10/27/98 


98 OSP 1282 


Phipps 


10/26/98 


97 OSP 06 17 


Chess 


05/27/98 


97 OSP 11 57 


Morrison 


07/22/98 


98 OSP 091 9 


Phipps 


09/24/98 


97 OSP 1122'' 


Chess 


06/02/98 


97 0SP1134'' 


Chess 


06/02/98 


98 OSP 0240 


Reilly 


06/08/98 


96 OSP 0833 


Chess 


08/24/98 


97 OSP 0613*- 


Gray 


07/10/98 


97 OSP 0638*'" 


Chess 


08/13/98 


97 OSP 0775 


Gray 


07/10/98 



Consolidated Cases. 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



1013 



CONTESTED CASE DECISIONS 



AGENCY 

Yolandra Best and Ro\ Hudson v DHHS. John Umstead Hospital 

Yolandra Best and Ro> Hudson v DHHS. John Umstead Hospital 

Kenneth Dippel V Columbus Count\ Dept of Social Senices 

Fred Foster, Jr v Depanment of Health and Human Senices 

Shung Fung-Chin v Department of Human Resources. Caswell Center 

Ruth Holroyd \ Montgomer. Cr> DSS. Children's Services 

Fred Foster. Jr v Department of Health and Human Services 

James W Crews v DHHS. Murdoch Center 

Patricia R Quick v DHHS. Dorothea Dix Hospital 

Angela M Miles v Cumberland Count\ Department of Social Services 

Delores Laveme Rich \ Health & Human Ser\ ices. Dorothea Dix Hosp 

Elwin C Munson v Health & Human Ser\ices. Juvenile Evaluation Center 

Fred Foster. Jr v Department of Health and Human Ser\ ices 

David A Kilpatrick \ Health & Human Ser\ ices. Caswell Center 

Fred Foster. Jr v Depanment of Health and Human Services 

Laura Blanton v Cleveland Center 

.Anthon\ M Ruiz \ Department of Health & Human Svcs. Youth Svcs. 

Rudolph Waters v DHHS. Youth Sen ices. Dobbs School 

Euwell Falconer V Karen A Andrews. Gaslon-Lmcoln Area Mental Health 

Jeffrey L Williams v Dorothea Dix Hospital 

Barbara Jean Paquette v Durham County (respondeat superior for the 

Durham County Public Library ) 
Linda Paige v Center Point Human Services Forsyth Mental Health 

Forsyth Industrial Systems 
Derrick Skinner v Health & Human Sen. ices. Cherry Hospital 

Depanment of Justice 

Linda Margaret Koss \ State Bureau of Investigation 

Department of Public Instruction 

Lillie Bumette Pearsall \ Wayne Cty Bd of Ed . Mrs Veda McNair and 
Mr Stev e Ta\ lor 



CASE 




DATE OF 


NTMBER 


ALJ 


DECISION 


97OSP0862*" 


Chess 


08/13/98 


97OSP0863*" 


Chess 


08/13/98 


97OSP0905 


Gray 


11/09/98 


97 0SP 1287»'= 


Smith 


08/20/98 


97 0SP 1530»" 


Chess 


08/13/98 


97 0SP 1586 


Smith 


05/27/98 


97OSP1701''- 


Smith 


08/20/98 


98 OSP 0060 


Grav 


07/20/98 


98OSP006I 


Becton 


07/16/98 


98 OSP 0084*' 


Grav 


07/10/98 


98 OSP 0120 


Gra\ 


07/08/98 


98 OSP 0140 


Phipps 


10/28/98 


98 OSP 0187*'- 


Smith 


08/20/98 


98 OSP 0271 


Owens 


08/13/98 


98 OSP 0403"= 


Smith 


08/20/98 


98 OSP 0453 


Smith 


10/02/98 


98 OSP 0454 


Grav 


06/04/98 


98 OSP 0474 


Morrison 


07/30/98 


98 OSP 0538 


Reillv 


08/06/98 


98 OSP 0595 


Becton 


07/22/98 


98 OSP 0765 


Momson 


08/05/98 


98 OSP 0819 


Smith 


11/05/98 


98 OSP 1035 


Gray 


09/21/98 


97 OSP 0189 


Chess 


08/14/98 


98 OSP 0944 


Smith 


08/25/98 



PI BLISHED DECISION 
REGISTER CITATION 



13:02 NCR 257 



Secretary of State 

Jonathan M Demers \ Department of Secretary of State 

Depanment of Transponation 

Johnny O Shivar v Department of Transportation 

Larry W Dav is \ Department of Transportation 

Sherry Lytin Noles v Department of Transportation-NCD.MV 

Clance Goodwin .Arthur v Department of Transponation. Femes Division 

University ofNonh Carolina 

Douglas Lo\e. Jr \ LiNC Hospitals 

Deborah J Fenner v. NC Central University 

Joyce M Smith \ Nonh Carolina Central University 

Edwin Swam v University of North Carolina at Chapel Hill 

Patncia A G Roberts v Asst /Chan /Qty Mgmt /Dir Human Res UNCW 

Leo Watford. Roosevelt Parris. Claiborne Baker, et al \ University of 

Nonh Carolina at Chapel Hill 
Johnny Johnson. Jr v A & T St University Student Union-Grievance Bd 
Jessie L Johnson v Bernard K Locklear. UINC at Pembroke 
Jonathan L Fann v North Carolina State University Physical Plant 
Greta M Hawthorne v University of NC at Pembroke 
Robert W Brinson v NC State University 
Albena \ Ingram-Peterson \ NC Central University 
Fred T Jackson v U'NC-Charlotte Recreational Facilities 
Betty Parks v Winston Salem State University 
Ronnie Bell v Dave Hillard. UiNC at Charlone 

ST\TE TREASl RER 

Hugh .A Wells \ Consolidated Judicial Retirement System of NC: 
Bd- of Trustees Teachers and State Employees' Retirement System 



97 OSP 1018 


Becton 


07/07/98 


97 OSP 1366 


Reillv 


09/01/98 


98 OSP 0241 


Grav 


07/08/98 


98 OSP 0269 


Chess 


08/11/98 


98 OSP 0864 


Phipps 


09/24/98 


97 OSP 0662 


Reillv 


06/08/98 


97 OSP 0902 


Chess 


05/29/98 


97 OSP 1297 


Smith 


06/25/98 


97 OSP 1694 


Momson 


07/31/98 


98 OSP 01 78 


Phipps 


10/08/98 


98 OSP 0254 


Chess 


07/17/98 


98 OSP 0299 


Owens 


09/02/98 


98 OSP 0444 


Grav 


09/29/98 


98 OSP 0465 


Becton 


07/17/98 


98 OSP 083! 


Chess 


09/11/98 


98 OSP 0887 


Ow ens 


08/10/98 


98 OSP 1024 


Smith 


10/14/98 


98 OSP 1216 


Smith 


10/22/98 


98 OSP 1278 


Chess 


11/25/98 


98 OSP 1330 


Smith 


11/10/98 


98DST0316 


Momson 


06/05/98 



13:03 NCR 343 



13:01 NCR 166 



TRANSPORT.4TION 

Da\ id Warren Dew et al 



Motor Vehicles. Alexander Killens Comm 



IM\ ERSIT\ OF NORTH CAROLINA 

Patricia D Hall \ Lni\ersit% of North Carolina at Chapel Hill 
Ladonna P James \ L^NC Hospitals 
Joyceline Sellars v, UiNC Hospitals 



95 DOT 1 1 44 


Gray 


06/04/98 


98 \MC 0397 


Reillv 


08/20/98 


98UfNC0591 


Becton 


07/20/98 


98 UNCI 113 


Smith 


10/22/98 



1014 



NORTH CAROLINA REGISTER 



December 15, 1998 



13:12 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

98 CPS 0427 



GODFREY AKENABOR 
Petitioner, 



NORTH CAROLINA CRIME VICTIMS 
COMPENSATION COMMISSION 
Respondent. 



RECOMMENDED DECISION 



Administrative Law Judge Melissa C. Owens heard this matter on October 22, 1998 in Raleigh, North Carolina, 

APPEARANCES 

For Petitioner: Charles F. Powers, Esq. 

Sink Powers Sink & Potter 
P.O.Box 1471 
Raleigh, N.C. 27602 

For Respondent: Jonathan P. Babb, Esq. 

Assistant Attorney General 
N.C. Department of Justice 
RO. Box 629 
Raleigh, N.C. 27602-0629 

ISSUE 

Whether the Respondent properly denied the Petitioner's victims compensation claim on the ground that the victim 
participated in criminal conduct at or about the time of her death? 

FINDINGS OF FACT 



The undersigned finds the following facts: 

1. The parties are properly before the Office of Administrative Hearings and the Office of Administrative Hearings 
has subject matter and personal jurisdiction over this contested case. 

2. The burden of proof is on the Petitioner to prove by a preponderance of evidence that Respondent improperly denied 
his victims compensation claim and he is entitled to such compensation. 



3. 



Petitioner. 



Petitioner is the husband of Stephanie Akenabor. Petitioner and Mrs. Akenabor have two children who live with 

4. Petitioner last saw Mrs. Akenabor on January 13, 1998. 

5. On January 19, 1998, Stephanie Akenabor was found shot and killed by a man with whom she had been living for 
at least one week. 

6. On January 19, 1998, Wake County Sheriffs Department Investigator Detective E. W. Woodlief investigated the 
scene and found the deceased victim in a rear bedroom at the scene. Detective Woodlief also discovered victim's identification and 
a crack pipe in a purse located near the victim. 

7. Detective Woodliefs investigation revealed that the victim and Mr. Harrington, the perpetrator, had last been seen 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



1015 



M U MwaM g m M iwsma 



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CONTESTED CASE DECISIONS 



three to four days before Januan.' 1 9. 1 998. A criminal record check on the victim indicated she had been charged with soHcitation 
of prostitution and possession of drug paraphemaHa. 

8. The victim had a historv' of cocaine abuse and had been in a rehabilitation center for cocaine abuse for three months 
in 1997. Several years ago the victim lost custody of her children to Petitioner due to her cocaine use. 

9. Both the Medical Examiner's Report and the Toxicology Report indicated the presence of cocaine in the victim's 
bod)' at the time of her death. 

10. There was no evidence presented by Petitioner and no evidence through Detective Woodliefs investigation proving 
the victim was forced to ingest cocaine at or near the time of her death. 

CONCLUSIONS OF LAW 

Based upon the foregoing Findings of Fact, the undersigned makes the following: 

1. N.C. Gen. Stat. § 15B-1 1(a)(6) states that a claim shall be denied if the victim participating in a nontraffic 
misdemeanor or felon\ at the time of the conduct that caused the injun,. N.C. Gen. Stat. § 90-95 makes it unlawful for an 
unauthorized person to possess a controlled substance. N.C. Gen. Stat. § 90-90 lists cocaine as a controlled substance. These 
provisions bar any recovery by the Petitioner in the instant case. 

2. The United States Court of Appeals for the Fourth Circuit has held that a laboratory test establishing the presence 
of a controlled substance in a person's body and evidence that decedent culpably or knowingly used a controlled substance amounts 
to the possession of that controlled substance. U.S. v. Clark. 30 F.3d 23(1994). This is persuasive authority that the ingestion of 
cocaine plus evidence of decedent's culpable use of cocaine should be treated as possession of same under the aforementioned 
statutes. 

3. In the instant case. Petitioner's claim is barred under N.C. Gen. Stat. § 15B-ll(a)(6) as she possessed cocaine at 
the time of murder. Possession is established b\ the facts that the Toxicology Report shows the victim had cocaine in her body at 
the time of her murder, that the victim had a history of cocaine abuse and evidence that Detective Woodlief found a crack pipe in the 
victim's purse at the crime scene. 

4. This decision does not mean that the victim's murder was justified, but that Petitioner's claim under North Carolina 
Crime Victims Compensation is barred. 

Based upon the above Findings of Fact and Conclusions of Law. the undersigned makes the following: 

RECOMMENDED DECISION 

The Commission's decision to deny the Petitioner crime victims compensation should be affirmed. 

ORDER 

It is hereby ordered that the agenc\ making the final decision in this matter serve a copy of the final decision to the Office 
of Administrati\e Hearings. P.O. Drawer 27447. Raleiah. North Carolina. 27611-7447. in accordance with N.C. Gen. Stat. § 150B- 
36(b). 

NOTICE 

The agenc\' making the final decision in this case is required to give each part>' an opportunit\- to file exceptions to this 
recommended decision and to present vsritten arguments to those in the agency who will make the final decision. N.C. Gen. Stat. § 
150B-36(a). 

The agenc\ is required to serve a cop\' of the final decision on all parties and to furnish a copy to the parties' attorney on 
record and to the Office of Administrative Hearings. N.C. Gen. Stat. § 150B-36(b). The agency that will make the final decision is 
the North Carolina Victims Compensation Commission. 



1016 NORTH CAROLINA REGISTER December 15, 1998 13:12 



This the SO"" day of October, 1998. 



CONTESTED CASE DECISIONS 



MELISSA C. OWENS 
ADMINISTRATIVE LAW JUDGE 



13:12 



NORTH CAROLINA REGISTER December 15, 1998 



1017 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF NEW HANOVER 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

98 DHR 0244 

98 DHR 0245 

98 DHR 0247 



( 



LIVING CENTERS-SOUTHEAST, INC., 
LUTHERAN RETIREMENT CENTER-WILMINGTON 
INCORPORATED, and NEW HANOVER HEALTH CARE 
CENTER, L.L.C., 
Petitioners, 



V. 



N.C. DEPARTMENT OF HEALTH AND HUMAN SERVICES 
DIVISION OF FACILITY SERVICES, CERTIFICATE OF 
NEED SECTION, 

Respondent, 

and 

DEVIN PARTNERSHIP AND DEVIN HEALTH CARE 
ASSOCIATES, L.L.C., COLUMBIA CAPE FEAR 
HEALTHCARE SYSTEM. LIMITED PARTNERSHIP, 
LIVING CENTERS SOUTHEAST, INC., LUTHERAN 
RETIREMENT CENTER-WILMINGTON 
INCORPOR^ATED, and NEW HANOVER HEALTH CARE 
CENTER L.L.C., 



Respondent-Intervenors. 



( 



SUMMARY OF RECOMMENDED DECISION 

The parties in this contested case proceeding filed cross motions for summar>' judgment. After hearing the arguments and 
reviewing the pleadings, exhibits, affidavits and memoranda of law, the undersigned concludes as a matter of law that no genuine 
issues of material fact exist. Therefore, summary' judgment is appropriate. Whether granted in whole or in part, the recommendation 
is that no part>' may be granted a certificate of need to develop the nursing homes in New Hanover County. 



I. 



RECOMMENDED DECISION GRANTING SUMMARY JUDGMENT CONCERNING THE 



DECISION ON THE DEVIN PARTNERSHIP AND DEVIN HEALTHCARE ASSOCIATES. 
L.L.C. 

This matter came on for hearing before the undersigned Administrative Law Judge on June 2. 1998, in 98-DHR-0243, 
98-DHR-0244, 98-DHR-0245, and 98-DHR-0247 upon motions by Petitioners New Hanover Health Care Center, L.L.C. ("New 
Hanover Center") and Columbia Cape Fear Healthcare System, Limited Partnership ("'Columbia") for an order recommending 
Summan, Judgment regarding the decision on The Devin Partnership and Devin Healthcare Associates, L.L.C. (collectively referred 
to as "Devin"). 

APPEARANCES 



Renee J. Montgomery 
James C. Thornton 



New Hanover Health Care Center, L.L.C. 



Staci L. Tolliver 



North Carolina Department of Human Resources, 
Division of Facility Services. Certificate of Need Section 



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December 15, 1998 



13:12 



CONTESTED CASE DECISIONS 



William R. Shenton 
Stephen R. Dolan 

James E. Gates 



Mary Beth Johnston 
Maureen Demarest Murray 



The Devin Partnership and Devin Healthcare 
Associates, L.L.C. 

Columbia Cape Fear Healthcare system. Limited 
Partnership 

Living Centers- Southeast, Inc. 

Lutheran Retirement Center- Wilmington Incorporated 

ISSUE 



Whether Devin's Certificate of Need application failed to conform with N.C.G.S. §13 1E-I83(a)(5) as a matter of law because 
Devin failed to document that sufficient funds were available and committed to the project. 

UNDISPUTED MATERIAL FACTS 

There are no genuine issues of material fact on the issue of whether Devin's Certificate of Need application conformed with 
N.C.G.S. § 13 lE-1 83(a)(5). The following undisputed facts support this Recommended Decision: 

1 . The 1997 State Medical Facilities Plan ("SMFP") identified the need for 110 additional nursing facility beds for 
New Hanover County. New Hanover Center, Devin, Columbia, and Lutheran Retirement Center- Wilmington, Inc. ("Lutheran"), along 
with certain other applicants not involved in these contested cases, filed applications with the North Carolina Department of Human 
Resources, Division of Facility Services, Certificate of Need Section ("CON Section") to receive a CON to develop nursing facility 
beds in New Hanover County, North Carolina. 

2. Devin submitted an application for a Certificate of Need to develop a 110 bed nursing facility in Wilmington, North 
Carolina. The Devin Partnership was named as lessor, and Devin Healthcare Associates, L.L.C, as lessee. 

3. In a letter dated January 28, 1998, the CON Section disapproved the applications of New Hanover Center, 
Columbia, Living Centers and Lutheran and conditionally approved the application of Devin. In a letter dated February 4, 1998, the 
CON Section transmitted to the parties a copy of the Required Agency Findings. 

4. In its application, Devin projected a total capital expenditure of $3,863,000. Of this amount, Devin proposed to 
finance $3,090,400 through a conventional loan and $772,600 through owners' equity. Additionally. Devin proposed to finance its 
start-up costs and initial operating expenses with a $400,000 line of credit. 

5. In its findings, the CON Section determined that the Devin Application, as submitted, did not conform with 
N.C.G.S. §§1 3 lE-1 83(a)(4) and (5). In its findings, the CON Section determined that there were deficiencies in the Devin application 
which caused it to fail to conform as submitted with N.C.G.S. §§131 E-1 83(a)(4) and (5). Specifically, the CON Section found that 
the bank letter submitted by Devinshire did not specify that the bank would, in fact, loan $3,863,000 and that the principals had not 
submitted letters that specifically committed the necessary liquid assets to fund the equit>' contribution. The CON Section found that 
Devin had failed to document that sufficient funds were available and committed to meet the capital needs, start-up costs and initial 
operating expenses of the project as required by N.C.G.S. §131E-183(a)(5) which resulted in a finding that the application, as 
submitted, also failed to conform with N.C.G.S. §131E-183 (a)(4). However, the CON Section did find the Devin application 
conforming with N.C.G.S. §131 E-1 83(a)(5) as long as it met the conditions contained in the findings. 

6. As an exhibit to its application, Devin included a letter fi-om the First National Bank of Wilmington reflecting a 
general willingness to work with two of the twelve partners toward a financing proposal to be used to construct the facility. The letter 
from First National Bank did not indicate that it had reviewed the financial position of Devin. or its principals, and found it to be 
adequate to support the proposal as required by the CON Section and as requested in the CON Section's application form. Likewise, 
the letter did not indicate that the bank intended to loan Devin $3,863,000 for the proposed project. Accordingly, the CON Section 
concluded that "the letter . . . does not specify that it will loan $3,863,000 for the proposed project." The CON Section found the bank 
letter did not sufficiently document the availability and commitment of a loan for the project. 

7. Devin did not include the fmancial statements of the Devin Parmership or Devin Healthcare Associates, L.L.C, in 
its application. Instead, the application included financial statements for the twelve principals of Devin. Certain assets in the financial 
statements were circled. However, Devin's application did not include any letters or other documentation from the twelve principals 



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NORTH CAROLINA REGISTER 



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1019 



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CONTESTED CASE DECISIONS 



that specifically committed their assets to fund the owner's equity contribution of $772,600. The CON Section found that "the twelve 
principals have not submitted letters that specifically commit the necessary liquid assets to fund the equity contribution of $772,600." 
The CON Section found the twelve principals of Devin had not provided sufficient documentation showing a commitment of their 
funds to the equity needed for the project. 

8. Devin also did not provide any documentation committing the bank to provide it with a $400,000 line of credit for 
start-up and initial operating expenses. The bank letter simply referenced the need for a line of credit. 

9. The CON Section decided to conditionally approve Devin's application subject to thirteen conditions. Three of these 
conditions dealt with funding: 

(3) Prior to the issuance of the certificate of need. The Devin Partnership [Lessor] and 
Devin Health Care Associates L.L.C. [Lessee] shall provide documentation from the owners that 
$772,600 has been committed to finance the owner's equity portion of the capital expenditure. 

(4) Prior to award of a construction contract. The Devin Partnership [Lessor] and Devin 
Health Care Associates L.L.C. (Lessee] shall provide documentation of a loan commitment from 
a lending institution for at least $3,090,400 for development of the proposed project. 

(5) Prior to award of a construction contract. The Devin Parmership (Lessor] and Devin 
Health Care Associates L.L.C. [Lessee) shall provide documentation of an approved credit line 
from a lending institution for at least $400,000 for the start-tip and initial operating expenses 
associated with the project. 

10. In response to Condition 3, on March 2, 1998, Owen Autry Butler, one of the principals of Devin, submitted a letter 
to the CON Section stating that the owners have committed $772,600 for the owner's equity portion of the proposed capital 
expenditures for the project. Devin did not provide letters from the twelve principals that specifically commit $772,600 to fmance 
owners' equity. 

1 1 . The Partnership Agreement of the Devin Partnership submitted with Devin's application does not authorize any of 
the partners to commit the personal assets of any of the individual partners to the business of the partnership. Instead, the agreement 
requires the written consent of all of the partners before any partner may advance any monies to the partnership in excess of the 
amount of his or her first contribution to capital. 

CONCLUSIONS OF LAW 

\. Chapter 13 IE. Article 9 of the North Carolina General Statutes sets forth review procedures and standards 

applicable to Certificate of Need applications. Certain statutory review criteria are specifically set forth in N.C.G.S. §131E-183(a), 
and an applicant must meet these criteria before the CON Section may issue the applicant a certificate of need. See N.C.G.S. 
§ 13 1 E-1 83(a): see also Presbyterian-Orthopaedic Hospital y, Dept. of Human Resources, et ah 122 N.C. App. 529. 470 S.E.2d 83 1 
( 1 996). Thus, for a CON application to be approved, it must be found fully conforming to all applicable statutory and regulatory 
criteria. ("An application must comply with all review criteria."); see also. Retirement Villages. Inc. et af y, Dept. of Human 
Resources, et al.. 124 N.C. App. 495, 477 S.E.2d 697(1996) ("Since we have determined that the applicants are each nonconforming 
to the statutory criteria on at least one ground, we see no need to reach the remainder of the applicants' arguments."). 

2. Summary' Judgment in a contested case regarding an application for a Certificate of Need is appropriate when there 
is no genuine issue of material fact regarding an applicant's failure to comply with one of the statutory' criteria or regulations governing 
applications for a Certificate of Need. Presbvlerian-Orthopaedic Hospital v. Dept.. of Human Resources, et al, 122 N.C. App. 529, 
470S.E.2d831 (1996). 

3. Statutory review Criterion 5 ("Criterion 5"), N.C.G.S. §131E-183(a)(5), provides; 

Financial and operational projections for the project shall demonstrate the availability of fionds for capital and operating needs as well 
as the immediate and long-term financial feasibility of the proposal, based upon reasonable projections of the costs of and charges 
for providing health services by the person proposing the services. 

4. In Retirement Villages y, Dept. of Human Resources, 124 N.C. App. 495, 477 S.E.2d 697 (1996), the North 
Carolina Court of Appeals held that Criterion 5 requires an applicant to show that; (1) sufficient funds are available to meet the 

1020 NORTH CAROLINA REGISTER December 15, 1998 13:12 



CONTESTED CASE DECISIONS 



financial requirements of the project; and (2) the persons or entities that are fiinding the project have committed those fimds to the 
proposed project. 

5. The letter from First National Bank which Devin submitted with its application was not sufficient to satisfy the 
requirements of Criterion 5 because it showed neither the availability nor the commitment of a bank loan for approximately 
$3,090,400 necessary for the proposed project. The CON Section correctly determined that the bank letter was not sufficient to meet 
the requirenients of Criterion 5. 

6. Devin also failed to show a commitment to fiind the owner's equity portion of the capital expenditure, $772,600. 
Although the application proposed that the individual owners of Devin would fiind owner's equity and financial statements from the 
owners were provided, these financial statements do not constitute suflficient evidence of a commitment by the principals to provide 
these funds as required under Criterion 5. See, Retirement Villages y^ Dept. of Hiunan Resources, 124 N.C. App. 495, 477 S.E.2d 
697 ( 1 996) (financial statements submitted by the funding entity were not sufficient evidence of a commitment to provide the funds 
for the project). There is nothing in the Devin application showing a commitment by the twelve principals to fund the owner's equity 
portion of the capital expenditure. The CON Section correctly determined that Devin failed to the availability of owner's equity. 

7. Devin also failed to show the availability of a $400,000 line of credit which it represented would be necessary for 
startup and initial operating expenses. The general acknowledgment from First National Bank of Wilmington that a line of credit 
would be required is not sufficient to show either the availability or the commitment of fimds for startup and initial operating expenses 
as required by Criterion 5. 

8. The CON Section is authorized pursuant to N.C.G.S. § 1 3 1 E- 1 86(a) to approve a CON application with conditions; 
however, in a competitive review, it is arbifrary and capricious for the Agency to use conditions to obtain statutorily required 
information to complete a nonconforming application. To do so places the conditionally-approved nonconforming applicant at an 
unfair advantage over the unapproved nonconforming applicants. N.C.G.S. §13 IE- 183(a) requires that the Agency determine that 
"... an application is either consistent with or not in conflict with these [statutory] criteria before a certificate of need for the proposed 
project shall be issued." (Emphasis added.) The determination of conformity must be based on information in the application, not 
information submitted after the Agency's decision. Consequently, the CON Section was not authorized to conditionally approve 
Devin's application when the application failed to document the availability and commitment of funds as required under Criterion 5. 

9. The Agency's regulation, 1 NCAC 3R.03 1 3(a), which states that the Agency can conditionally approve an application 
that does not conform with all review criteria, is void as applied in this case because it is beyond the Agency's statutory authority. 
N.C.G.S. § 1 50B-33(b)(9) and § 1 3 1 E- 1 83(a). In Retirement Villages, the North Carolina Court of Appeals held that: 

an application for a certificate of need must contain evidence of a commitment to provide fiands 
by the flmding entity. We hold that without such a commitment, an applicant cannot adequately 
demonsfrate the availability of fiands or the requisite financial feasibility. 

Retirement Villages. Inc. y. Dept. of Human Resources. 1 24 N.C. App. at 499; see also. Presbyterian-Orthopaedic Hospital y, Dept. 
of Human Resources et ak, 122 N.C.App. 529, 470 S.E.2d 831 (1996)("an application must comply with aH review criteria."); 
Britthaven. Inc. v. Dept. of Human Resources. 118 N.C.App. 379,385,455 S.E.2d 459, disc, review denied , 341 N.C. 418. 461 
S.E.2d 754 (1995)("The language of the statute demonstrates the intent of the Legislature to have the Agency first ensure that each 
application comports with the statutory and regulatory criteria."). Thus, Devin was required to provide sufficient documentation of 
the availability and commitment of funds for its proposed project. Absent such documentation in its application, the CON Section 
could not conditionally approve Devin's application. 

10. Moreover, the fourth and fifth conditions imposed by the Agency on Devin are insufficient as a matter of law for 
an additional reason. These conditions stated that "prior to the award of a construction contract" Devin "provide documentation of 
a loan commitment from a lending institution for at least $3,090,400 for the development of the proposed project," and that Devin, 
provide documentation for an approved credit line from the lending institution for at least $400,000 for the start-up and initial 
operating expenses associated with the project." Thus, the conditions stated by the CON Section only required Devin to show a 
commitment of funds prior to the award of a construction contract by Devin; they did not require that Devin show a commitment of 
funds prior to the issuance of the Certificate of Need. N.C.G.S. § 1 3 1 E- 1 83(a), however, specifically requires that an application be 
"consistent with or not in conflict with these criteria before a Certificate of Need for the proposed project shall be issued." (emphasis 
added). Consequently, because the conditions imposed by the Agency did not require Devin to comply with the applicable statutory 
and regulatory criteria prior to the Agency issuing a Certificate of Need to Devin, these conditions are in excess of the Agency's 
statutory authority. 



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CONTESTED CASE DECISIONS 



1 1 . Devin also has failed to compK' with the third condition imposed b> the CON Section. Owen Autry Butler's letter 
stating that the owners were committing funds to finance the owners equit\ portion of the proposed capital expenditure does not 
constitute sufficient documentation of a commitment of funds to the proposed project from the owners. Consequently, even if the 
Agency were authorized to impose Condition 3. De\ in has failed to submit documentation showing compliance with that condition. 

12. Because this recommended decision addressed one issue in this contested case, the undersigned concluded that it 
was interlocutor.' in nature and therefore, not subject to review for final agency decision at that time. N.C.G.S. § 1 A-1 . N.C. Civ. Proc. 
Rules 54 and 56; 26 NCAC 3 .0101(1). This decision is now incorporated into this recommended decision. 

RECOMMENDED DECISION 

It is hereb>' recommended that the Motions for Summarv Judgment as to Devin's Certificate of Need application be 
GRANTED, and that a Certificate of Need should not be issued to Devin because in its application as submitted. Devin failed to 
demonstrate conformity with N.C.G.S. § 131E-183(a)(5). 

XL RECOMMENDED DECISION GRANTING SUMMARY JUDGMENT 

CONCERNING THE DECISION OF LUTHERAN RETIREMENT 

CENTER-WILMINGTON, INC. 

This matter came on for hearing before the tmdersigned Administrative Law Judge on September 1 8. 1 998 in 98-DHR-0244, 
98-DHR-0245. and 98-DHR-0247 upon motions by Petitioners New Hanover Health Care Center. L.L.C. ("New Hanover Center") 
and Li\ ing Centers-Southeast. Inc. ("Living Centers") for an order recommending Summar\- Judgment regarding the decision on 
Lutheran Retirement Center- Wilmington, Inc. ("Lutheran"). 

APPEARANCES 



Renee J. Montgomen.- 
James C. Thornton 



New Hanover Health Care Center. L.L.C. 



Staci T. Mever 



North Carolina Department of Health and Human Services. 
Division of Facilit\ Services, Certificate of Need Section 



Mar. Beth Johnston 
Clav M. Custer 



Li\ing Centers-Southeast. Inc. 



Maureen DeMarest Murray 
Susan M. Fradenbura 



Lutheran Retirement Center- Wilmington Incorporated 



William Shenton 



Devin Partnership and De\in Health Care Associates. Stephen Dolan 
L.L.C. 



ISSUES 

1. 'Whether Lutheran's Certificate of Need application failed to conform with N.C.G.S. §I31E- 183(a)(3) as a matter 
of law because Lutheran failed to demonstrate a need for the adult care beds proposed in its Certificate of Need application. 

2. Whether Lutheran"s Certificate of Need application failed to conform with N.C.G.S. §131E-183(a)(5) because 
Lutheran failed to include an\ capital costs for the land on which it proposed to locate the facilit). 

3. Whether Lutheran's Certificate of Need application failed to conform with 10 N.C.A.C. 3R .1 125(d) and (e) because 
Lutheran failed to adequateh identify the location and suitabilit\ of its proposed priman.. secondarv'. and tertian.- sites. 

UNDISPUTED MATERIAL FACTS 

There are no genuine issues of material fact on the abo\e referenced issues, and the following undisputed facts support this 
Recommended Decision: 



\. 



The 1997 State Medical Facilities Plan ("SMFP") identified the need for 110 additional nursing facilit\- beds for 



1022 



NORTH CAROLINA REGISTER 



December IS, 1998 



13:12 



CONTESTED CASE DECISIONS 



New Hanover County. New Hanover Center, Devin Partnership and Devin Health Care Associates, L.L.C. ("Devin"), Lutheran, and 
Columbia Cape Fear Healthcare System, Limited Partnership ("Cape Fear"), along with certain other applicants not involved in these 
contested cases, filed applications with the North Carolina Department of Health and Human Services, Division of Facility Services, 
Certificate of Need Section ("CON Section") to receive a CON to develop nursing facility beds in New Hanover County, North 
Carolina. Lutheran"s application also included a proposal to include 20 adult care home beds in the nursing facility. 

2. In a letter dated January 28, 1998, the CON Section disapproved the applications of New Hanover Center, Cape 
Fear, Living Centers and Lutheran and conditionally approved the application of Devin. In a letter dated February 4, 1998, the CON 
Section transmitted to the parties a copy of the Required Agency Findings. 

3. In its written findings dated February 4, 1998, the CON Section found that Lutheran's application was deficient and 
failed to conform with, among other things, the statutory review criteria set forth in N.C.G.S. § 1 3 1 E-1 83(a)(3). Specifically, the CON 
Section found that Lutheran's application failed to conform with N.C.G.S. §131E(a)(3) ("Criterion 3"), because Lutheran did not 
demonstrate that there was a need for the 20 adult home care beds that Lutheran proposed to develop in New Hanover County. The 
CON Section's decision to find Lutheran non-conforming with Criterion 3 was based in part on a moratorium that the General 
Assembly had placed on the addition of adult care home beds in the State of North Carolina and in part on Lutheran's failure to 
demonstrate that there was any need for additional adult home care beds in New Hanover County. 

4. New Hanover Center, Living Centers, Cape Fear, and Lutheran filed Petitions for Contested Case Hearing to appeal 
the CON Section's decisions to deny their respective applications. These cases were consolidated for hearing and each party was 
granted permission to intervene in the other parties' contested cases. 

5. New Hanover Center filed a Motion for Summary Judgment concerning the decision on Devin on the grounds that 
Devin failed to demonstrate conformity with N.C.G.S. §131E-183(a)(5) ("Criterion 5") as a matter of law. This Court granted the 
Motion and entered an Interlocutory Recommended Decision granting summary judgment concerning the decision on Devin. As a 
result, this Court also ordered that no discovery would be conducted and no evidence admitted as to Devin's application. 

6. The parties later reached an agreement pursuant to which Cape Fear withdrew its Petition for Contested Case 
Hearing. Consequently, the applications that continue to be at issue in this contested case are those of New Hanover Center, Living 
Centers, and Lutheran. 

7. In its application, Lutheran proposed to include 20 adult care home beds as part of its 110 bed nursing home facility 
in New Hanover County. In support of its proposal to include 20 adult care home beds as part of its nursing facility, Lutheran 
submitted; (1) responses to a survey that it conducted showing that four out of eight health care providers believed that there was a 
need for additional dementia adult care beds, and (2) a letter from the New Hanover County Department of Social Services which 
indicated that the Department occasionally had difficulty in locating adult care home beds for residents with dementia. Lutheran 
submitted no other information with its application which purported to demonstrate a need for additional home care beds in New 
Hanover County. 

8. At the time Lutheran's application was being reviewed, the vacancy rate for existing and approved adult care home 
beds in New Hanover County was 46.49%. In addition, in August of 1997 (effective July 1, 1997) the North Carolina General 
Assembly adopted Senate Bill 352 which placed a moratorium on the addition of any adult home care beds in North Carolina for a 
12-month period because of the proliferation of unnecessary adult care home beds. On October 30, 1998, the North Carolina 
legislature enacted Senate Bill 1366. Part of this bill addressed the restriction on the construction of adult care home beds. The bill 
specifically provides that: 

(d) This section [the section placing a moratorium on the development of aduh 

care beds] shall not apply to adult care home beds which are part of a 
continuing care facility subject to the jurisdiction of or licensed by the 
Department of Insurance pursuant to Article 64, Chapter 58 of the North 
Carolina General Statutes, or to adult care home beds which are part of an 
application filed with the Department of Health and Human Services prior to 
August 28. 1997 . or between July L 1998 and August 1, 1998, pursuant to 
Article 9 of Chapter 13 IE of the North Carolina General Statutes. 

Lutheran's application was filed with the Department pursuant to Article 9 of Chapter 1 3 1 E on August 1 5, 1 997. 

9. In Section VIll of its application, Lutheran projects a total capital cost of $5, 145,045 for the project. The capital 



13:12 NORTH CAROLINA REGISTER December 15, 1998 1023 



CONTESTED CASE DECISIONS 



costs included by Lutheran in Section VIII of its application do not include any capital costs associated with Lutheran's acquisition 
of the land upon which Lutheran proposes to build its nursing facility. Lutheran contends that because it plans to conduct a land swap 
to obtain the property on which it will locate the facility, there will be no costs associated with its acquisition of the land. Lutheran 
also fails to include any expenses associated with the proposed land swap in its capital expenses in Section VIII. 

10. Lutheran's primary and secondary sites set forth in its application would be acquired by exchanging one of these 
sites for property that Lutheran already owns. Lutheran acquired part of this property that it already owns (its tertiary site on 
Masonboro-Loop Road) through donation and part through purchase. In its pro forma balance sheet submitted with its application, 
Lutheran uses a value of $956,600 for the land to be used for its proposed nursing home. If Lutheran had included the value of its 
land in its capital expenses, it would have paid an application fee of $17,500. Because Lutheran did not include the value of the land 
being swapped or any expenses associated with its proposed "land swap", it only paid an application fee of $15,935. 

11. In its application. Lutheran identifies its proposed primary and secondary sites for the project only as five acres on 
"Rose Avenue." Lutheran also includes the letter from UNC-Wilmington that relates to its proposed land swap, but this letter 
indicates that the parties had not yet identified the specific property which Lutheran was to receive from UNC-Wilmington and on 
which Lutheran was to locate its proposed facility. 

12. Lutheran included in its application a letter from the New Hanover County Engineering Department that certifies 
that Rose Avenue has sewer capabilities. Lutheran's application does not contain any information regarding the availability of water 
and sewer service for Lutheran's tertiary site which was located on Masonboro-Loop Road. 

CONCLUSIONS OF LAW 

1 . Chapter 1 3 1 E. Article 9 of the North Carolina General Statutes set forth review procedures and standards applicable 
to Certificate of Need applications. Certain statutory review criteria are specifically set forth in N.C.G.S. §131E-183(a), and an 
applicant must meet these criteria before the CON Section may issue the applicant a Certificate of Need. See N.C.G.S. § 1 3 1 E-1 83(a); 
see also Presbvterian-Orthopaedic Hospital v. Dept. of Human Resources, et al., 122 N.C. App. 529, 470 S.E.2d 831 (1996). Thus, 
for a CON application to be approved, it must be found fully conforming to all applicable statutory and regulatory criteria. ("An 
application must comply with all review criteria."); see also Retirement Villages. Inc. et al. v. Dept. of Human Resources, et al., 124 
N.C. App. 495, 477 S.E.2d 697 (1996) ("Since we have determined that the applicants are each nonconforming to the statutory criteria 
on at least one ground, we see no need to reach the remainder of the applicants' arguments."). 

2. Summary Judgment in a contested case hearing regarding an application for a Certificate of Need is appropriate 
when there is no genuine issue of material fact regarding an applicant's failure to comply with one of the statutory criterion or 
regulations governing application for a Certificate of Need. Presbvterian-Orthopaedic Hospital y. Dept. of Human Resources, et al. 
122 N.C. App. 529, 470 S.E.2d 83 1 (1996). 

3. Statutory review Criterion 3 is found at N.C.G.S. §13IE-183(a)(3) and provides as follows: 

The applicant shall identify the population to be served by the proposed project, and shall 
demonstrate the need that this population has for the services proposed, and the extent to which 
all residents of the area, and in particular, low income persons, racial and ethnic minorities, 
women, handicapped persons, the elderly, and other underserved groups are likely to have access 
to the services proposed. 

4. At the time Lutheran submitted its application, the North Carolina General Assembly had adopted Senate Bill 352 
which placed a moratorium on the addition of any adult care home beds in the State of North Carolina. Consequenth'. at the time of 
its application. Lutheran was imable, as a matter of law, to demonstrate a need for additional adult care home beds in New Hanover 
County. 

5. Under Senate Bill 352, the Department of Health and Human Services had no authority to approve the addition of 
any adult care home beds for any type of home or facility in North Carolina. Consequent!), at the time of the decision in January of 
this year, the Agency had no authority to approve Lutheran's Certificate of Need application which included adult care home beds. 
However, because the General AssembK' enacted Senate Bill 1366 on October 30, 1998, the statutorily-mandated moratorium is no 
longer applicable to Lutheran's application. That issue is now moot. 

6. However, even absent the moratorium placed on adult care home beds. Lutheran's application failed to document 
that there was a need for additional adult care home beds in New Hanover Counfy. Lutheran included with its application the 
following documents in support of its contention that there was a need for additional adult care home beds in New Hanover County: 



1024 NORTH CAROLINA REGISTER December 15, 1998 13:12 



CONTESTED CASE DECISIONS 



(1) the results of a survey that it conducted showing that four out of eight health care providers in New Hanover County felt that there 
was a need for additional adult care beds; and (2) a letter from the New Hanover Department of Social Services indicating that the 
Department occasionally had difficulty in locating adult care home beds for residents suffering fi-om dementia. The information 
provided by Lutheran, however, falls far short of establishing that there was a need for additional adult care home beds in New 
Hanover County. 

7. The insufficiency of the information included with Lutheran's application is further evidenced by the fact that, at 
the time Lutheran's application was being reviewed, there was a 46.49% vacancy rate for adult care home beds in New Hanover 
County. The CON Section correctly determined that Lutheran's application failed to conform with Criterion 3. 

8. Even if the CON Section has no authority to regulate the provision of new adult care home beds, when those beds 
are proposed with a project for nursing home beds, the addition of the adult care home beds can impact the overall financial feasibility 
of the total project. Therefore, the CON Section correctly analyzed the need for the adult care home beds pursuant to N.C.G.S. 
§ 13 lE-1 83(a)(3). 

9. Statutory Review Criterion 5 ("Criterion 5"), N.C.G.S. §131E-183(a)(5), provides as follows: 

Financial and operational projections for the project shall demonstrate the availability of funds 
for capital and operating needs as well as the immediate and long-term financial feasibility of the 
proposal based upon reasonable projections of the costs of and charges for providing health 
services by the person proposing the services. 

10. In its application, Lutheran failed to include any costs which would be associated with its acquisition of the land 
on which it proposed to locate the facility. Lutheran contends that it was not required to include such costs in its application because 
it would not incur any costs in its proposed land swap with UNC- Wilmington. 

1 1 . Lutheran's proposed land swap with UNC- Wilmington would, however, involve Lutheran exchanging something 
of value, the land which it already owned, for the land on which it proposed to locate its site. Thus, the value of the land which 
Lutheran was providing to UNC- Wilmington would be a cost for Lutheran, and should have been included as a capital cost in its 
application. 

12. Furthermore, even assuming arguendo , that relinquishing title to land that it already owned as part of its land swap 
with UNC- Wilmington would not constitute a capital cost, Lutheran's failure to include in its application any of the other costs, legal 
fees and expenses which would necessarily be incurred as part of its proposed land swap was unreasonable. Therefore, Lutheran's 
application was not "based upon reasonable projections of [ ] costs . . ." as required by Criterion 5, and Lutheran's application can 
not be approved as a matter of law. 

13. Lutheran's failure to include the value of land and all costs associated with the proposed land swap resulted in 
Lutheran failing to pay the proper filing fee with its application. 10 N.C.A.C. 3R.0305 states that an application shall not be reviewed 
by the Agency unless it is filed in accordance with the rule which specifies that each applicant must transmit a filing fee calculated 
based upon its proposed capital expenditure. Lutheran's failure to pay the appropriate filing fee resulted in an incomplete application 
which should not have been reviewed by the CON Section. 

14. 10 N.C.A.C. 3R.1 125(d) requires that, in conjunction with an application for a Certificate of Need, "an applicant 
proposing to establish new nursing facility beds shall specify the site on which the facility will be located." Lutheran's application, 
however, fails to adequately identify the locations of its primary and secondary sites. 

15. In Sections XI. 2 and XI.3 of the application, Lutheran identifies its primary and secondary sites for the facility only 
as five acres on "Rose Avenue." Such a vague identification of the proposed site for its nursing facility is not sufficient to meet the 
requirements of 10 N.C.A.C. 3R.1 125(d), and Lutheran's failure to comply with this regulatory criteria means that Lutheran's 
application is not approvable as a matter of law. See Presbyterian-Orthopaedic Hospital y, Dept. Of Human Resources, et al., 122 
N.C. App. 529, 470 S.E.2d 831 (1996). 

16. 10 N.C.A.C. 3R.1 125(e) requires that: 

An applicant proposing to establish new nursing facility beds shall document that the proposed 
site and alternative sites are suitable for the development of a nursing facility with regards to 
water, sewage disposal . . . 



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CONTESTED CASE DECISIONS 



1 7. With respect to its primary and secondary sites, Lutheran's application includes a letter from the New Hanover 

County Engineering Department which does not reference the specific location of Lutheran's proposed site, but states only that "Rose 
Avenue (in the vicinity of UNC-W)" has sewer capabilities. There is no information whatsoever in Lutheran's application which 
indicates that water and sewer service is available at Lutheran's proposed tertiary site location on Masonboro-Loop Road. 
Consequently, Lutheran's application does not provide the necessary documentation showing that its proposed site and alternative 
sites have appropriate water and sewer capabilities as required by 10 N.C.A.C. 3R. 1125(e), and Lutheran's application is not 
approvable as a matter of law. See Presbyterian-Orthopaedic Hospital v. Dept. Of Human Resources, et al.. 122 N.C. App. 529, 470 
S.E.2d831 (1996). 

RECOMMENDED DECISION 

It is hereby recommended that the Motions for Summary Judgment as to Lutheran's Certificate of Need application be 
GRANTED, and that a decision be entered that Lutheran cannot be issued a Certificate of Need. 

III. RECOMMENDED DECISION GRANTING SUMMARY JUDGMENT CONCERNING 
THE DECISION ON LIVING CENTERS-SOUTHEAST, INC. 

This matter came on for hearing before the undersigned Administrative Law Judge on September 18,1 998 in 98-DHR-0244, 
98-DHR-0245. and 98-DHR-0247 upon motions by Petitioners New Hanover Health Care Center, L.L.C. ("New Hanover Center") 
and Lutheran Retirement Center- Wilmington, Inc. ("Lutheran") and Respondent-lntervenors The Devin Partnership and Devin Health 
Care Associates LLC ("Devin") for an order recommending Summary Judgment regarding the decision on Living Centers-Southeast, 
Inc. ("Living Centers"). 

ISSUES 

1. Whether Living Centers' Certificate of Need application failed to conform with N.C.G.S. §131E-183(a)(5) as a 
matter of law because Living Centers failed to include any interest expense in its financial projections. 

2. Whether Living Centers' Certificate of Need application failed to conform with N.C.G.S. § 13 lE-1 83(a)(5) as a 
matter of law because Living Centers failed to document that sufficient funds were available and committed to the project. 

3. Whether the change in control over the Living Centers' project, without disclosing the effect of this planned change 
in control in the Living Centers' application, constituted an impermissible amendment of the Living Centers' application. 

UNDISPUTED MATERIAL FACTS 

As described below, there are no genuine issues of material fact with respect to the above referenced issues: 

1. The 1997 State Medical Facilities Plan ("SMFP") identified the need for 110 additional nursing facilit>' beds for 
New Hanover Count)'. New Hanover Center. Devin Partnership and Devin Healthcare Associates. L.L.C. ("Devin"), Columbia Cape 
Fear Health Care Systems Limited Partnership ("Cape Fear"), and Lutheran, along with certain other applicants not involved in these 
contested cases, filed applications with the North Carolina Department of Health and Human Services. Division of Facility Services, 
Certificate of Need Section ("CON Section") to receive a CON to develop nursing facility beds in New Hanover County, North 
Carolina. 

2. In a letter dated January 28, 1998, the CON Section disapproved the applications of New Hanover Center, Cape 
Fear. Living Centers and Lutheran and conditionally approved the application of Devin. In a letter dated Februar> 4. 1998, the CON 
Section transmitted to the parties a copy of the Required Agency Findings. 

3. New Hanover Center. Living Centers, Cape Fear and Lutheran filed Petitions for Contested Case Hearing to appeal 
the CON Section's decisions to deny their respective applications. These cases were consolidated for hearing and each party was 
granted permission to intervene in the other parties' contested cases. 

4. New Hanover Center filed a Motion for Summary Judgment concerning the decision on Devin on the grounds that 
Devin failed to demonstrate conformity with Criterion 5 as a matter of law. This Court granted the Motion and entered an 
Interlocutor) Recommended Decision granting summarv judgment concerning the decision on Devin. 

5. The parties later reached an agreement pursuant to which Cape Fear withdrew its Petition for Contested Case 
1026 NORTH CAROLINA REGISTER December 15, 1998 13:12 



CONTESTED CASE DECISIONS 



Hearing. Consequently, the applications that continue to be at issue in this contested case are those of New Hanover Center, Living 
Centers, and Lutheran. 

6. In its application. Living Centers represents that it will fimd $3.75 million in capital costs for the project with "cash 
on hand." The application also represents that approximately $250,000 in working capital will be funded with cash. According to 
the President of Living Centers, "cash" means money from the parent company, from whatever source. Living Centers has no cash 
and no bank accounts. 

7. The application of Living Centers contains no separate financial statements from Living Centers-Southeast, Inc. 
Instead, the application only contains: (a) consolidated financial statements from Living Centers of America, Inc., the parent company 
of Living Centers-Southeast, Inc. at the time the application was filed, and (b) a certificate from an officer of Living Centers of 
America which indicates that Living Centers of America would fund the project with the "more than $650 million in credit facilities" 
it has available. The financial statements of Living Centers of America that were included with Living Centers' application disclosed 
that Living Centers of America paid $19.3 million in interest on long-term debt in 1996. 

8. Even though the Living Centers' application represents that it intends to ftind the project with $650 million of 
available credit from Living Centers of America and that Living Centers of America paid $19.3 million in interest on long-term debt 
in 1996, Living Centers failed to include any interest expense in the fmancial pro formas included in its application. 

9. In November of 1997, Living Centers of America, Inc. recapitalized and merged with Apollo Management, L.P. 
and GranCare. The merger of the companies resulted in the formation of a new company named Paragon Health Network, Inc. 
("Paragon"). At the time Living Centers submitted its Certificate of Need application. Living Centers knew that Living Centers of 
America, Inc. was recapitalizing and merging with Apollo Management, L.P. ("Apollo"), and merging with GranCare. Living Centers' 
application did not, however, provide any financial information on Apollo Management or GranCare, nor did Living Centers' 
application contain evidence of a commitment by Paragon, Apollo or GranCare to fund the project. 

10. In addition, after the recapitalization and merger, ownership and control of Living Centers' CON application 
substantially changed. According to Paragon's September 1 997 SEC filing, the former Living Centers of America stockholders held 
only 14.1% of Paragon's stock after the recapitalization and merger, and Apollo obtained control of the Board of Directors of Paragon. 
There was no disclosure in Living Centers' application of the effect of this planned change of confrol on Living Centers' proposed 
project. 

CONCLUSIONS OF LAW 

1. Chapter 13 IE, Article 9 of the North Carolina General Statutes sets forth review procedures and standards 
applicable to Certificate of Need applications. Certain statutory review criteria are specifically set forth in N.C.G.S. §131E-183(a), 
and an applicant must meet these criteria before the CON Section may issue the applicant a Certificate of Need. See N.C.G.S. 
§13 IE- 183(a); see also Presbyterian-Orthopaedic Hospital v. Dept. of Human Resources, et al., 122 N.C. App. 529, 470 S.E.2d 831 
(1996). Thus, for a CON application to be approved, it must be found fully conforming to all applicable statutory and regulatory 
criteria. ("An application must comply with al] review criteria."); see also. Retirement Villages. Inc. et aL y, Dept. of Human 
Resources, et al, 1 24 N.C. App. 495, 477 S.E.2d 697 ( 1 996) ("Since we have determined that the applicants are each nonconforming 
to the statutory criteria on at least one ground, we see no need to reach the remainder of the applicants' arguments."). 

2. Summary Judgment in a contested case hearing regarding an application for a Certificate of Need is appropriate 
when there is no genuine issue of material fact regarding an applicant's failure to comply with one of the statutory criterion or 
regulations governing application for a Certificate of Need. Presbyterian-Orthopaedic Hospital v. Dept. of Human Resources, et al., 
122 N.C. App. 529,470 S.E.2d 831 (1996). 

3. Statutory review Criterion 5 ("Criterion 5") is found at N.C.G.S. §131E-183(a)(5) and provides as follows: 

Financial and operational projections for the project shall demonsfrate the availability of funds 
for capital and operating needs as well as the immediate and long-term financial feasibility of the 
proposal, based upon reasonable projections of the costs of and charges for providing health 
services by the person proposing the services. 

4. Thus, pursuant to Criterion 5, an applicant must show that a project is financially feasible. In addition, the North 
Carolina Court of Appeals held in Retirement Villages v. Dept. of Human Resources . 124 N.C. App. 495,477 S.E.2d697 (1996) that 
Criterion 5 also requires that an applicant show that: ( 1 ) sufficient fiinds are available to meet the fmancial requirements of the project; 

13:12 NORTH CAROLINA REGISTER December 15, 1998 1027 



CONTESTED CASE DECISIONS 



and (2) the persons or entities that are funding the project have committed those funds to the proposed project. 

5. The source of funding for Living Centers' proposed project was through Living Centers' parent corporation, Living 
Centers of America. Inc. According to the 1996 Annual Report of Living centers of America, Living Centers of America carried 
$263 million of long-term debt on its balance sheet and paid interest expense of almost $20 million. Furthermore, Living Centers 
of America's Annual Report shows that it borrowed amounts equal to 55% of its assets, thus giving Living Centers of America a 55% 
debt to asset ratio. 

6. Despite the fact that the funding entity- for the project. Living Centers of America, paid approximately $20 million 
in interest in 1996, Living Centers failed to include any interest expense in its financial projections. This at least raises an issue of 
fact as to whether Living Centers should have included interest expense in its financial projections since it represented that its parent 
company planned to use debt financing for the project. 

7. If Living Centers had included interest expense in its application. Living Centers' proposal would show losses in 
each of the first three operating years . Specifically, using the same 55% debt to asset ratio shown in Living Centers of America's 
financial statement. Living Centers would have incurred in an annual interest expense for the project for the first few years of over 
$160,000. The addition of this interest expense to Living Centers' financial projections results in Living Centers' showing a loss in 
each of its first three years of operation. Consequently, if interest expense had been included. Living Centers' proposed project could 
not be financially feasible as required by Criterion 5. 

8. In applying Criterion 5, the North Carolina Court of Appeals has held that: 

[Criterion 5] requires the Agency to determine the availability of funds for the project from the 
entity responsible for funding, which may or may not be an applicant. 



The application must [also] contain evidence of a commitment to provide funds by the funding 
entity. We hold that without such a commitment, an applicant cannot adequately demonstrate 
availability of funds or the requisite financial feasibility. 

Retirement Villages y, Dept. of Human Resources , 124 N.C. App. 495. 499 477 S.E.2d 697 (1996). 

9. Living Centers' application for a CON in this case fails to meet the requirements set forth in Retirement Villages . 
In its application for a CON, Living Centers relies upon its parent company, Living Centers of America, to finance the proposed 
development of the 1 10 bed nursing facilitv'. However, prior to submitting the Living Centers' application. Living Centers of America 
announced that it was undergoing a recapitalization and merger with Apollo and GranCare, Inc. As a result of the recapitalization 
and merger. Living Centers of America ceased to exist and no longer had flinds available with which to fund the project. 

10. The Living Centers' application, however, contains no financial information from Apollo or GranCare, nor does 
it contain evidence of a commitment from Apollo or GranCare to fund the Living Centers' project. Absent such evidence of 
availability and commitment from Apollo and GranCare, whose shareholders were to comprise over 85% of the ownership of the 
parent of Living Centers, Living Centers' application fails to provide evidence of the availability and commitment "to provide the 
funds by the funding entity" as required by Criterion 5. Retirement Villages . 124 N.C. App. 499. Because of this deficiency, Living 
Centers' application does not comply with Criterion 5. 

11. In addition. Living Centers cannot now provide information which indicates that Paragon. Apollo or GranCare has 
sufficient funds available for the project and that such funds are committed to the project because this would constitute an 
impermissible amendment to Living Centers' application. See 10 N.C.A.C. 3R.0306; see also Presbyterian-Orthopaedic Hospital , 
122 N.C. App. 527. 420 S.E.2d 837 (1996). 

12. As discussed above, in November of 1997, Living Centers of America. Inc. recapitalized and merged with Apollo 
and GranCare and formed a new company named Paragon. After the recapitalization and merger, the former Living Centers of 
America stockholders held only 14.1°/o of the stock of Paragon, and Apollo controlled the Board of Directors of Paragon. 

13. Under the Certificate of Need regulations, "[cjontrol of a Certificate of Need is transferred when an\' person 
acquires a majority interest in the facilit>. project or holder or any parent entity of the facilit>'. project or holder." 10 N.C.A.C. 
3R.03 17(c). Furthermore, under the Certificate of Need law, the Department of Health and Human Services is authorized to 



1028 NORTH CAROLINA REGISTER December 15, 1998 13:12 



CONTESTED CASE DECISIONS 



> 



immediately withdraw any Certificate of Need "if the holder of the certificate, before completion of the project or operation of the 
facility, transfers ownership or control of the facility, the project, or the Certificate of Need." N.C.G.S. §13 IE- 189(c). However, 
the Certificate of Need law also provides that "[tjransfers resulting from death or personal illness or other good cause, as determined 
by the Department, shall not result in withdrawal if the Department receives prior written notice of the transfer and finds good cause." 

14. The transfer or assignment of Certificates of Need outside the procedures outlined in N.C.G.S. §131E-189(c) is 

strictly prohibited. N.C.G.S. §131E-181(a). Living Centers did not have a Certificate of Need for its proposed project in New 
Hanover County at the time of the Apollo/GranCare recapitalization and merger. Consequently, the Department does not have a 
Certificate of Need that it can withdraw from Living Centers. However, the effect of the change in control of Living Centers' project 
after the review began, with no disclosure of the effect of this planned change of control in the CON application, results in an 
impermissible amendment of Living Centers' application. See Presbyterian-Orthopaedic Hospital, 122 N.C. App. 527, 420 S.E.2d 
837(1996). 

RECOMMENDED DECISION 

It is hereby recommended that the Motions for Summary Judgment as to Living Centers' Certificate of Need application be 
GRANTED, and that a decision be entered that Living Centers cannot be issued a Certificate of Need. 

IV RECOMMENDED DECISION GRANTING SUMMARY JUDGMENT 
AGAINST NEW HANOVER HEALTH CARE CENTER. L.L.C. 

ISSUES 

A. Is New Hanover Center's Application nonconforming with Criterion Five because it did not sufficiently document 
the availability and commitment of funds? 

B. Is New Hanover Center's Application not financially feasible and nonconforming with N.C. Gen. Stat. 
§13 lE-1 83(a)(5) because it contained umeasonable projections of Medicare and Medicaid revenues? 

C. Is New Hanover Center's Application nonconforming with N.C. Gen. Stat. § 1 3 1 E-1 83(a)(13)(c) ("Criterion 1 3(c)") 
because it projected access for skilled care to Medicaid patients at below the Statewide and County Averages? 

UNDISPUTED MATERIAL FACTS 

A. AVAILABILITY AND COMMITMENT OF FUNDS 

1 . In support of its findings that New Hanover Center adequately demonstrated the availability and commitment of 

funding for the development of its project under Criterion Five, the CON Section found: 

In Application Section VIII, page 64, New Hanover Health Care Center projects a total capital 
expenditure of $4,028,438 of which $2,620,438 is for construction. On page 65, New Hanover 
Health Care Center proposes to obtain a conventional loan to finance $2,104,000 with the 
remaining capital expenditures of $2,014,438 proposed to be financed with owner=s equity. In 
Sec. IX., page 68, the applicant projects start-up and initial operating expenses of $1,325,000. 
The applicant states that cash flows from the facility's operations will fund $1,025,000 with the 
remaining $300,000 in working capital needs to be fimded from a line of credit with Central 
Fidelity Bank of Virginia. 

. . . Application Exhibit 15 also contains a July 14. 1997 letter from Central Fidelity National 
Bank of Roanoke, Virginia, which states that a $1,000,000 line of credit has been established 
with James R. Smith, and that there is no current balance, fiarther [sic], the bank expects that the 
line of credit will probably be renewed for another year upon its expiration on September 30, 
1997. 

(Agency Decision at 786). 

a. Capital Expenses 



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CONTESTED CASE DECISIONS 



2. In its application to construct and operate a 110-bed nursing facility in New Hanover County. Project I.D. 
#0-5674-97, New Hanover Center projected a total capital expenditure of $4,028,438. (New Hanover Center Application at 64). 

3. New Hanover Center proposed to finance this capita! expenditure as follows: 

$2,014,000 Conventional loan 

$2,014.438 Owner=s equity contribution by James R. Smith 

$4,028,438 

(New Hanover Center Application at 65-67). 

4. Documentation of the availability of the owner's equity consisted of Mr. Smith's imaudited financial statements. 
(New Hanover Center Application. Ex. 15 at 380). 

5. Mr Smith's financial statements showed: 
Current Assets: $ 664.807 Cash - business account 

Sl.578.410 Cash - project related 

$2,243,217 

(New Hanover Center Application. Ex. 15 at 382). 

6. The Analyst relied on this $ 2.243.217 in cash as documenting cash available to be contributed to the project. 
(Slaton Dep. Vol. 1 at 145-146). 

7. "Cash-project related" indicates that the cash has been committed to other projects in which Mr. Smith is involved. 
(Clary Dep. at 40). 

8. New Hanover Center's application showed that Mr Smith, 99% owner of New Hanover Center, had three other 
CON applications pending in North Carolina at the time of the review of the New Hanover application with projected equity 
contributions from Mr Smith in the amount of $4,573,153. (New Hanover Center Application at 67). 

9. Mr. Smith's fmancial statements also showed Mr. Smith as having four certificate of need projects pending approval 
or with development in progress with Mr. Smith having a 50% or 100% ownership in each. (New Hanover Center Application, Ex. 
15 at 385). 

10. With the project related cash on Mr. Smith's financial statements in the amoimt of $1,578,410 not available to this 
project, Mr Smith only has available $664,807 to contribute to his equity interest in the project. 

1 1 . This leaves a shortfall of $1,349,631 of the total capital costs projected to be funded by an equity contribution from 
Mr Smith. 

b. Start-Up and Initial Operating Costs 

12. New Hanover Center projected a total working capital expenditure of $1,325,000, consisting of estimated start-up 
expenses of $75,000 and estimated initial operating expenses of $1,250,000. (New Hanover Center Application at 68). 

13. New Hanover Center proposed to finance these start-up and initial operating expenses as follows: 

$1,025,000 Operating revenue from the facility 

$ 300.000 Mr Smith's $ 1 ,000,000 personal line of credit with Central Fidelity Bank 

$1,325,000 

(New Hanover Center Application at 68-69). 

14. New Hanover Center included in its application a Januar\' 15. 1997 letter from Central Fidelity Bank of Virginia 
stating that James R. Smith had a personal line of credit with the Bank in the amount of $1,000,000. (New Hanover Center 
Application. Ex. 15 at 374-77: Slaton Dep. Vol. I at 146-47). 

15. According to the Bank letter's express terms, the lineof credit expired September 30. 1997. (New Hanover Center 



1030 NORTH CAROLINA REGISTER December IS, 1998 13:12 



CONTESTED CASE DECISIONS 



Application, Ex. 15 at 374; Slaton Dep. Vol. Ill at 167). 

1 6. A July 1 4, 1 997 letter from Central Fidelity Bank confirmed that the line of credit would expire on September 30, 
1997 but could potentially be renewed through September 30, 1998. (New Hanover Center Application, Ex. 15 at 378). 

* 17. Even if the line of credit was renewed through September 30, 1 998, it still would have lapsed more than nine months 

before July 15, 1999, the date on which New Hanover Center projected to open its facility. (New Hanover Center Application at 92). 

1 8. Nothing in the Application documented that the line of credit would be available during the start-up and opening 
phase of the facility. 

1 9. The CON Section relied in part on the line of credit to determine that New Hanover Center conformed to Criterion 
Five. (Slaton Dep. Vol. 1 at 148). 

20. Operating revenue of $1,025,000 was to be used to fund start-up and initial operating expenses. (New Hanover 
Center Application at 68). 

2 1 . New Hanover Center projected net cash provided by operating activity in year one at a loss of $202,356, a year two 
profit of $242,773 and a year three profit of $329,896. (New Hanover Center Application at 133). 

22. Calculated over three years, this totals $370,3 13 in net cash provided by operating activities. 

23. Based on its net cash projections. New Hanover Center will actually not be able to cover at least $654,687 of the 
projected $1,025,000 of its start-up and initial operating expenses that were projected to be covered by operating revenue. (New 
Hanover Center Application at 68). 

24. Alternatively, New Hanover Center's cash flow projections by quarter showed a cumulative cash flow by the end 
ofyear two of $257,310. (New Hanover Center Application at 71). 

25. Based on its cash flow projections New Hanover Center will not be able to cover $767,690 of the projected 
$1,025,000 of its start-up and initial operating expenses that were projected to be covered by operating revenue. (Nev\ Hanover 
Center Application at 68). 

26. The total funds needed for capital expenditure and working capital expenditure are: 

$4,028,438 Total capital expenditure 

$1.325.000 Total working capital expenditure 

$5,353,438 Total funds needed 

27. Even if all of Mr Smith=s cash was available to pay for capital expenditures and there was operating revenue of 
$1,025,000, without the line of credit, New Hanover would still be $71,221 short of funds needed. 

B. MEDICARE AND MEDICAID PROJECTED REIMBURSEMENT 

28. Medicare will only reimburse a nursing facility its costs. (Clary Dep. at 26, 31). 

29. In year two. New Hanover Center projected total Medicare days of 4468. (New Hanover Center Application at 43). 

30. In year two. New Hanover Center also projected a Medicare charge of $152 per day. (New Hanover Center 
Application at 77). 

31. New Hanover Center's total reimbursable cost per patient day for skilled nursing care, the only type of care 
reimbursed by Medicare, was $1 10.44. (New Hanover Center Application at 112). 

32. The difference between New Hanover's proposed Medicare charge and its total reimbursable skilled nursing costs 
is $41.56. 

33. This difference of $41.56 multiplied by the total number of Medicare days, 4468. results in overstated Medicare 
13:12 NORTH CAROLINA REGISTER December 15, 1998 1031 

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CONTESTED CASE DECISIONS 



revenue in the amount of $ 1 85,690. 

34. Medicaid reimbursement for the total indirect cost component is estabhshed by the Division of Medical Assistance, 
North Carolina Department of Health and Human Services, and is a flat amount paid to all facilities regardless of actual indirect costs 
incurred. (Slaton Dep. Vol. Ill at 141). 

35. If the facility projects total indirect costs in excess of the anticipated Medicaid indirect costs, the facility will incur 
a loss under the Medicaid program. (Slaton Dep. Vol. Ill at 141-144; Lane Dep. at 144). 

36. In its application. New Hanover Center projected a total indirect cost per patient day in year two of $24.27. (New 
Hanover Center Application at 1 12; Agency File at 668). 

37. The Medicaid total indirect rate per patient day expected in year two is $22.10. (Slaton Dep. Vol. Ill at 141; Agency 
File at 651). 

38. The difference between New Hanover Center's total indirect costs per patient day and the Medicaid indirect rate 
in year two is $2.17 per patient day. This represents a loss of $2.17 per patient day. 

39. New Hanover Center's total projected Medicaid days in year two are 29,044. (New Hanover Center Application 
at 43; Agency File at 628). 

40. The total Medicaid days multiplied by the projected loss per patient day results in a total expected Medicaid revenue 
shortfall of $63, 025. 

41. New Hanover Center projected a profit in year two of $168,940. (New Hanover Center Application at 99). 

42. Deducting the overstated Medicare revenue of $ 1 85,690 and the overstated Medicaid revenue of $63,025 from the 
profit of $ 1 68,939 results instead in a loss of $79,776 in year two. 

43. The CON Section considers a project to not be fmancially feasible if an application projects a loss in year two. 
(Slaton Dep. Vol. Ill at 147). 

C. ACCESS BY UNDERSERVED 

44. The Agency found New Hanover Center's Application nonconforming with Criterion (13)(c) on the basis that it 
did not provide sufficient access to Medicaid patients who would need skilled care. (Agency Decision at 817). 

45. New Hanover Center projected it would provide 53.2% skilled care days to Medicaid eligible patients. (New 
Hanover Application at 485; Agency Decision at 817). 

46. According to the 1996 DMA Desk Audited Cost Report Information 61.6% of skilled care days were provided to 
patients eligible for Medicaid in all New Hanover County nursing facilities. (Slaton Dep. Vol I at 171; Agency Decision at 817). 

47. According to the 1996 DMA Desk Audited Cost Report Information 65.1% of skilled care days were provided to 
patients eligible for Medicaid in all North Carolina nursing facilities. (Slaton Dep. Vol. 1 at 171; Agency Decision at 817). 

48. New Hanover Center projected Medicaid skilled patient days that were 8.4% lower than the New Hanover County 
average and 1 1.9% lower than the State average. (Agency Decision at 818). 

CONCLUSIONS OF LAW 

A. NEW HANOVER CENTER DID NOT DOCUMENT THE AVAILABILITY OF SUFFICIENT FUNDS TO COVER 

CAPITAL AND WORKING CAPITAL NEEDS AND THEREFORE IS NONCONFORMING WITH CRITERION FIVE. 

1. Criterion Five provides: 

Financial and operational projections for the project shall demonstrate the availability of funds 
for capital and operating needs as well as the immediate and long term financial feasibility of the 

1032 NORTH CAROLINA REGISTER December 15, 1998 13:12 



CONTESTED CASE DECISIONS 



proposal based upon reasonable projections of the costs of and charges for providing health 
services by the person proposing the service. 

N.C. Gen. Stat. §13 IE- 183(a)(5). 

2. Criterion Five requires an applicant to demonstrate the availability and commitment of sufficient funds for the 
project or its application is not approvable. Retirement Villages v^ Dept. of Human Resources . 124 N.C. App. 495, 477 S.E.2d 697 
(1996). 

3. The Agency erred in concluding that New Hanover Center's Application demonstrated that it has sufficient funds 
available to cover the project's capital start-up and initial operating costs. 

4. "Cash-project related" on Mr. Smith's fmancial statements meant that cash was not available and committed to this 
project but was restricted and committed to other projects. 

5. On its face. New Hanover Center's Application only documented that Mr. Smith had available and committed to 
the project cash equity of $664,807 rather than the $2,014,438 needed for the project. 

6. The Agency erroneously relied upon Mr. Smith's personal $1,000,000 line of credit as being available to fund 
working capital needs, since on the face of the Application the line of credit would expire more than nine months before the start-up 
and initial operating expenses would be incurred. 

7. Without the line of credit New Hanover Center failed to document the availability and commitment of $300,000 
needed for start-up and initial operating expenses. 

8. The Agency erred in concluding that New Hanover Center had sufficient funds available and committed to fmance 
working capital needs because its Application failed to demonstrate the availability of sufficient funds from operating revenues. 

9. Considering the lack of the line of credit and a shortfall of up to $767,690.00 in operating revenues, there is a 
shortfall of $1,067,690 in funds to cover operating costs. 

B. NEW HANOVER CENTER'S APPLICATION IS NOT FINANCIALLY FEASIBLE AND IS NONCONFORMING 
WITH CRITERION FIVE BECAUSE IT DOES NOT CONTAIN REASONABLE PROJECTIONS OF MEDICARE AND 
MEDICAID REVENUE. 

10. The Agency erred in concluding that New Hanover Center projected reasonable charges and should have found its 
Application nonconforming with Criterion Five because New Hanover Center projected a Medicare charge that excluded its Medicare 
costs by $41 .56 per day. 

11. The Agency erred in failing to conclude that New Hanover Center projected unreasonable costs and was 
nonconforming with Criterion Five because New Hanover Center projected Medicaid indirect costs per patient day of $24.27 
compared to an expected Medicaid indirect rate per patient day of $22. 10. 

12. The Agency erred in failing to conclude that New Hanover Center's Application was not financially feasible and 
nonconforming with Criterion Five because its overstated Medicare and Medicaid revenues result in the project generating a loss in 
year two. 

C. NEW HANOVER CENTER'S FAILURE TO PROVIDE SUFFICIENT ACCESS TO SKILLED CARE MEDICAID 
PATIENTS MAKES IT NONCONFORMING WITH CRITERION 13(C). 

13. Criterion 13(c) provides: 

The applicant shall demonstrate the contribution of the proposed service in meeting the 
health-related needs of the elderly and of members of medically underserved groups, such as 
medically indigent or low income persons. Medicaid and Medicare recipients, racial and ethic 
minorities, women, and handicapped persons, which have traditionally experienced difficulties 
in obtaining equal access to the proposed services, particularly those needs identified in the State 
Health Plan as deserving of priority. For the purpose of determining the extent to which the 



13:12 NORTH CAROLINA REGISTER December 15, 1998 1033 

i i niMi aH inB i miMiiiu i a » aaii i !»nuiiii]jmmMiiia i8Bniiii 



CONTESTED CASE DECISIONS 



proposed service will be accessible, the applicant shall show: 



(c) That the elderly and medically underserved groups identified in this 

subdivision will be served by the applicant's proposed services and 
the extent to which each of these groups is expected to utilize the 
proposed services . . . 

N.C. Gen. Stat. §131E-183(a)(13)(c). 

14. Criterion 13(c) requires an applicant to demonstrate that it will provide sufficient access to Medicaid patients as 
a group and not only to Medicare and Medicaid patients combined. 

15. The Agency reasonably determined that to satisfy Criterion 1 3(c) an applicant must project that it will serve at least 
the average percentage of Medicaid patients served by existing facilities in New Hanover County and the State. 

16. The Agency correctly concluded that New Hanover Center's Application failed to conform with Criterion 13(c), 
because its projection of access to skilled Medicaid patients was 8.4% lower than the county average and 1 1 .9% lower than the state 
average. 

17. Applicants had notice of the Agency's interpretation of Criterion 13(c) as a result of prior nursing home decisions. 
See 1997 Burke County Decision, June 27, 1997; 1997 Johnston County Decision, July 28, 1997; 1997 Iredell County Decision, 
August 28. 1997. 

18. New Hanover Center's projection of providing service to skilled care Medicaid patients at a rate 8.4% lower than 
the county average and 11.9% lower than the state average makes it nonconforming with Criterion 13(c) because it does not 
sufficiently document that this medically underserved group will have sufficient access to service. 

RECOMMENDED DECISION 

It is hereby recommended that the Motions for Summarv' Judgment against New Hanover be GRANTED and that a decision 
be entered that New Hanover not be issued a CON. 

OFFER OF PROOF 

Petitioner New Hanover Health Care Center, L.L.C. submitted an Offer of Proof to be included in the Official Record. An 
Objection and Motion to Strike was filed by Living Centers of America. The documents shall be filed as an Offer of Proof to be 
included in the Official Record. 

NOTICE 

The Agency making the final decision in this contested case will be required to give each party an opportunity to file 
exceptions to this Recommended Decision and to present written arguments to those in the Agency who will make the final decision. 
N.C.G.S. §150B-36(a). 

The Agency is required by N.C.G.S. §150B-36(b) to serve a copy of the final agency decision on all parties to fiomish a copy 
to the parties' attorney of record and to the Office of Administrative Hearings. The Agency that will make the final decision in this 
contested case is the North Carolina Department of Health and Human Services, Division of Facility Services. 

This the 24th dav of November. 1998. 



Meg Scott Phipps 
Administrative Law Judge 



1034 NORTH CAROLINA REGISTER December 15, 1998 13:12 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

98 ELS 0047 



THOMAS A. TRULOVE, JR., PE 
Petitioner, 



V. 



NC BOARD OF EXAMINERS FOR ENGINEERS 
AND SURVEYORS 
Respondent. 



PROPOSAL FOR DECISION 



This contested case was heard before the undersigned Chief Administrative Law Judge on September 28, 1998, in the Office 
of Administrative Hearings, Raleigh, North Carolina. 



For Petitioner: 



For Respondent: 



APPEARANCES 

Thomas A. Trulove, Jr. 
3601 Regents Park Lane 
Greensboro, North Carolina 27455 
Petitioner - pro se 

David S. Tuttle 

Board Counsel 

North Carolina Board of Examiners for 

Engineers and Surveyors 

3620 Six Forks Road. Suite 300 

Raleigh. North Carolina 27609 

Attorney for Respondent 

ISSUES 

Whether or not Petitioner was guilty of gross negligence, misconduct or incompetence in the practice of engineering in the 
preparation of plans entitled "ME ADO WOOD GLEN CONDO'S", dated 10/31/95 by: 

1 . affixing his seal to inadequate design documents and failing to conduct his practice in order to protect the public 
health, safety and welfare [21 NCAC 56 .0701(b)] 

2. affixing his signature and seal to engineering documents dealing with subject matter for which he lacks competence 
by virtue of education or experience [21 NCAC 56 .0701(c)(3)]; 

3. affixing his seal to work not done under his direct supervisory control or responsible charge [21 NCAC 56 
.0701(c)(3), and 

4. failing to properly sign, seal and date documents [21 NCAC 56 .1103], and for a determination of the disciplinary 
measures, if any. 

STATUTES AND RULES IN ISSUE 

North Carolina General Statute 89C-20, 21 and 22 
North Carolina Administrative Code Title 21. Chapter 56 (Board Rules) 

Based upon the evidence presented and the entire record in this proceeding, the undersigned makes the following: 

FINDINGS OF FACT 



13:12 



NORTH CAROLINA REGISTER 



December 15, 1998 



1035 



W Mmmunan simisB 



mj«nmuatnmiiiijiiujjuj<jii mwnwnmTiiw 



CONTESTED CASE DECISIONS 



1 . The Office of Administrative Hearings has jurisdiction of this contested case pursuant to Chapters 89C and 150B 
of the North Carolina General Statutes. 

2. At all times, the Petitioner was a resident of Greensboro, North Carolina. The Petitioner was duly licensed by the 
Respondent as a Professional Engineer, but Petitioner's license was not renewed for the calendar year 1998, and he has not practiced 
engineering since January 1, 1998, because his license was not properly renewed. Previously, Petitioner's license was not renewed 
for the remainder of the year 1997. 

3. The Respondent is a professional licensing board created under Chapter 89C of the General Statutes of North 
Carolina with its principal office in Wake County, North Carolina. 

4. The City of Greensboro Building Inspections Department reviewed a set of design drawings entitled, "Meadowood 
Glen Condo's by Pierce-Roif Corp., Greensboro, N.C.," dated October 31, 1995, on or about January 26, 1996. The plans were 
rejected for failing to have a professional seal and for code violations. The Inspections Department faxed comments to Howard 
Thompson. 

5. The Meadowood Glen drawings were resubmitted on or about June 24, 1 996. The permit application listed Howard 
Thompson as the "Design Professional", but the drawings bore the seal and signature of the Petitioner. The drawings were again 
rejected because Petitioner's engineering seal had been expired since January 1 , 1996 and was not renewed until April 4. 1997. The 
plans examiner who conducted the reviews of the drawings conversed only with Mr. Thompson and never directly with Petitioner 

6. The subject drawings were again resubmitted on or about September 12, 1996. The permit application dated 
September 11, 1996 listed Howard Thompson as the "Design Professional." This time the drawings bore the seal of John P. Kelly, 
PE, but these drawings were not prepared under his supervision. However, the project drawings were eventually permitted by the 
City of Greensboro based upon Mr Kelly's seal. 

7. Petitioner admitted in an interview with Respondent's investigator that he did not prepare any of the design work 
on this project but that Howard Thompson did it all. During a later interview, he stated that he maintained a separate office from Mr 
Thompson. Mr. Thompson retained all building plans but he and Petitioner would collaborate from time to time to make sure 
everything on the drawings was okay. 

8. Mr. Thompson is neither an employee of Petitioner nor does he work in the same office as Petitioner. 

9. Mr. Thompson considered the contractor to be his client and the project to be his project. He maintained 
communication with the client and billed the client. 

10. The Petitioner sealed drawings not properly designated as final or preliminary and further, neither signed nor 
annotated the date of signing on each sheet. 

1 1 . Petitioner has been in declining health for the last several years. 
Based upon the above Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1. Board Rule .0701(c)(3) in pertinent part requires that the professional engineer "(s)hall not affix his signature or 
seal to any engineering. . .plan or document not prepared under his direct supervisory control. Direct supervisory control (responsible 
charge) requires a registrant or employee to carry out all client contacts, provide internal and external financial control, oversee 
employee training, and exercise control and supervision over all job requirements to include research, planning, design, field 
supervision and work product review." Petitioner, for design drawings entitled "Meadowood Glen Condo's by Pierce-Roif Corp,, 
Greensboro, N.C.," flagrantly affixed his seal to work not prepared under his direct supervisory control or responsible charge in 
violation of Board Rule .0701(c)(3) and is guilty of misconduct in the practice of the engineering profession for this act. 

2. Board Rule .1 103(b) in pertinent part requires that "(c)ertification is not required for 'preliminary work'. All other 
drawings. . . shall conform to the following: . . .(4) 'The date of signing must be annotated on the original document." The requirements 
for "preliminary work" are stated in .1103(a) and require that "the work is stamped or clearly marked as 'preliminary work'..." 
Petitioner, for design drawings entitled "Meadowood Glen Condo's by Pierce-Roif Corp., Greensboro, N.C.," flagrantly failed to 
properly sign, seal and date documents in violation of Board Rule .1103(a) and (b) and is guilty of misconduct in the practice of the 



1036 NORTH CAROLINA REGISTER December 15, 1998 13:12 



CONTESTED CASE DECISIONS 



engineering profession for this act. 

3. No evidence was presented that Petitioner affixed his seal to inadequate design documents in violation of Board 

Rule .0701(b). 

' 4. No evidence was presented that Petitioner affixed his signature and seal to engineering documents dealing with 

subject matter for which he lacks competence by virtue of education or experience in violation of Board Rule .0701(c)(3). 

5. Petitioner's continuation in the profession as a licensed engineer presents a clear and present danger to the public's 

health, safety and welfare. 

Based upon the above Findings of Fact and Conclusions of Law, the undersigned makes the following: 

PROPOSAL FOR DECISION 

It is recommended that the Petitioner's license to practice engineering be revoked by the North Carolina Board of Examiners 
for Engineers and Surveyors under the provisions of G.S. 89C-2 1 . 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, P. O. Drawer 
27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions 
and proposed findings of fact and to present oral and written arguments to the agency. G.S. 150B-40(e). 

A copy of the final agency decision or order shall be served upon each party personally or by certified mail addressed to the 
party at the latest address given by the party to the agency and a copy shall be furnished to his attorney of record. G.S. 150B-42(a). 
It is requested that the agency furnish a copy to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina Board of Examiners for Engineers 
and Surveyors. 

This the 1 1th day of November, 1998. 



Julian Mann, 111 

Chief Administrative Law Judge 



13:12 NORTH CAROLINA REGISTER December 15, 1998 1037 

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